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Potential nominee profile: Don Willett

Of all the names on President Donald Trump’s list of potential Supreme Court nominees, Don Willett’s may be the best known outside rarefied legal circles. That’s because while he was running for his second term on the Texas Supreme Court in 2012, Willett embraced Twitter as a way to get his campaign message across, and Twitter embraced him back. Although Willett dialed down on his tweeting after he was nominated for a seat on the U.S. Court of Appeals for the 5th Circuit, he has 109,000 Twitter followers and has sent almost 26,000 tweets – full of memes and puns and celebrating everything from Texas-shaped cornbread to the Constitution – including one or two that took mild jabs at Trump. The Texas legislature even named Willett the state’s “Tweeter Laureate.” He has called himself, in his trademark down-home style, “probably the tweetingest judge in America, which, admittedly, is like being the tallest Munchkin in Oz.” His regular-guy work habits include writing at what he calls “my satellite office: my neighborhood Chick-fil-A,” where last November he helped perform the Heimlich maneuver on a fellow patron who was choking on a gluten-free bun. Willett’s folksy manner overlays a fierce commitment to an approach to judging that is controversial even among conservatives.

Donny Ray Willett was born on July 16, 1966, in Talty, Texas, which he describes as “so small that our ZIP Code began with a decimal.” His adoptive father died when Willett was six years old, and his mother worked long hours as a truck-stop waitress to support Don and his sister. The first in his family to graduate from college, Willett was a triple major at Baylor, a Christian university chartered by Baptist missionaries, and then went on to Duke University, where he received a law degree and an M.A. in political science in 1992. After a clerkship with Judge Jerre Stockton Williams on the U.S. Court of Appeals for the 5th Circuit and a short stint in private practice, Willett embarked on a career in government under George W. Bush, first in the Texas governor’s office and then in the White House, where he advised the president on religious-liberty issues. Willett went on to work on judicial confirmations as head of the Justice Department’s Office of Legal Policy. In early 2003, Willett returned to Texas to become the chief legal counsel for then-Texas Attorney General Greg Abbott.

In August 2005, Governor Rick Perry nominated Willett to fill a vacancy on the Texas Supreme Court. Willett was re-elected to that position in 2006 and again in 2012, the second time with 78 percent of the vote. A campaign ad promoted Willett as the “most conservative justice” on a court composed of nine Republicans. Trump included Willett on the first list of potential Supreme Court nominees in May 2016, and he nominated Willett to the 5th Circuit in October 2017. During Willett’s confirmation hearings, Democratic senators on the Judiciary Committee quizzed him about several controversial tweets; one included a link to a Fox News story about a transgender student’s joining a girls’ softball team with the message: “Go away, A-Rod.” Willett explained the “A-Rod” tweet as “a ham-handed attempt at levity.” On December 13, 2017, the Senate voted 50-47 to confirm him.

Because the Texas Supreme Court hears only civil cases, most of Willett’s judicial track record is limited to that arena. Even within those constraints, though, he has staked an outspoken claim to a libertarian brand of judicial activism that some have termed “judicial engagement.” Defying the conservative orthodoxy of “judicial restraint,” which judges like Robert Bork espoused in rejecting what they saw as the creation by liberal judges of rights not found in the Constitution, Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it. Like Justice Neil Gorsuch when he was a judge on the U.S. Court of Appeals for the 10th Circuit, Willett has made a point of writing separately to declare his principles. As a profile by Eric Benson in the Texas Observer points out, “Willett’s most famous opinions have come in cases that are deceptively narrow, but which in fact offer a map to reshaping the role of the judiciary.” An early example is Robinson v. Crown Cork & Seal, in 2010, in which Willett concurred in a decision striking down a statute that shielded a company from successor liability in a tort case. In his separate opinion, Willett proclaimed: “If judicial review means anything, it is that judicial restraint does not allow everything. Yes, courts must respect democratically enacted decisions; popular sovereignty matters. But the Texas Constitution’s insistence on limited government also matters, and that vision of enumerated powers and personal liberty becomes quaint once courts (perhaps owing to an off-kilter grasp of ‘judicial activism’) decide the Legislature has limitless power to declare its actions justified by police power. At that constitutional tipping point, adjudication more resembles abdication.”

In 2015, Willett again threw down the gauntlet in his battle for a reconceived judiciary, in an opinion that attracted widespread attention. In Patel v. Texas Department of Licensing and Regulation, the Texas Supreme Court struck down the state’s licensing requirements for eyebrow threaders. Willett weighed in with a lengthy and spirited concurrence outlining his vision of the judicial role. He questioned the familiar analogy, employed by Chief Justice John Roberts in his confirmation hearing, that likens judges to umpires, wondering, “when it comes to restrictive licensing laws, just how generous is the constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on occupational freedom? Are the most patently farcical and protectionist restrictions nigh unchallengeable, or are there, in fact, judicially enforceable limits?”

Although the ruling in Patel was based on the Texas Constitution, much of the analysis drew on the precedents of the U.S. Supreme Court. The dissent in Patel compared Willett’s approach to that taken in Lochner v. New York in 1905, when the U.S. Supreme Court struck down a law regulating the hours of bakery employees as a violation of economic liberty under due process clause of the 14th Amendment. Over several decades following Lochner, the court invoked “substantive due process” to strike down a series of state and local statutes that regulated working conditions. In 1937, the court began to retreat from Lochner, and in 1955, in Williamson v. Lee Optical of Oklahoma, a unanimous court repudiated the Lochner doctrine, holding that “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.” In Patel, Willett met the Lochner comparison head-on, calling the “Lochner bogeyman” “a mirage.” He alluded approvingly to “[a] wealth of contemporary legal scholarship [that] is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated rights such as economic liberty.” In his view, when judges “submissively uphold even the most risible encroachments” on economic liberty by engaging in cursory, rational-basis review of regulations, as they have ever since Lochner was overruled and discredited, they abdicate their responsibility to protect “the unalienable human right to pursue happiness without curtsying to government on bended knee.” “The Court’s view is simple, and simply stated: Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.”

Willett sounded a similar note when he dissented from denial of a petition for review in El-Ali v. Texas, in 2014. The lower court had upheld the Texas civil-forfeiture statute, which allows the state to seize property that was used to facilitate a crime or that constitutes the proceeds of a crime. The petitioner had argued that the “statute is unconstitutional because it does not also require the State to prove the property owner knew or should have known of the illegal conduct.” The majority relied on a Texas Supreme Court precedent from 1957 that upheld the civil-forfeiture statute against a similar challenge under the Texas Constitution, but Willett urged his colleagues to reconsider the “Eisenhower-era decision.” “In my view,” he wrote, “the civil forfeiture realities of 2014 — the prevalence, procedures, and profitability — compel us to reexamine the constitutional protections due innocent property owners. The stakes are grave indeed, as asset forfeiture cases threaten not merely property but, more fundamentally, property rights, something we have recently (and unanimously) extolled as essential to ‘freedom itself.’” As he had in Patel, in which he suggested that onerous licensing regulations disfavor “Texans of modest means” by imposing barriers to entry into new professions, Willett objected to civil forfeiture as “disproportionately ensnar[ing] those least capable of protecting themselves, poor Texans who usually capitulate without a fight because mounting a defense is too costly.” Willett’s hostility to civil forfeiture resembles the approach of Justice Clarence Thomas, who has taken up the cudgels, most recently in a statement respecting the denial of certiorari last year in Leonard v. Texas, against what he views as abusive civil-forfeiture regimes. Willett’s willingness to jettison precedent also echoes Thomas’ belief that if a prior case is wrong, it should be overruled.

Willett is said to assign Justice Antonin Scalia and Bryan Garner’s ”Reading Law: The Interpretation of Legal Texts” to his new law clerks. A commitment to the “textualist” approach to statutory interpretation espoused by Scalia undergirded a dissent Willett joined in 2010. In In re: B.W., the Texas Supreme Court held that a 13-year-old could not be charged for prostitution, because a child of that age “cannot consent to sex as a matter of law.” The majority reasoned that “transforming a child victim of adult sexual exploitation into a juvenile offender was not the Legislature’s intent,” but the dissent insisted that “[t]he text of the Juvenile Justice and Penal Codes does not support the Court’s result.”

Traces of Scalia’s originalist approach to constitutional interpretation are evident in Willett’s signing on to a concurrence in ETC Marketing v. Harris County Appraisal District, in 2017. The concurring justices quoted Scalia when they objected to having to apply what they characterized as an “inane” Supreme Court dormant-commerce-clause test in a challenge to a tax on natural gas stored in Texas while awaiting shipment elsewhere: “But a judicial test is merely a means to an end. And the end is sound interpretation of the Constitution’s plain words and original meaning. The dormant Commerce Clause itself is already enough of a deviation from the Constitution’s text. We need not compound the sin by relying exclusively on an imprecise, fabricated test to implement a made-up doctrine. We can objectively answer the question of constitutionality without resorting to such ‘interpretive jiggery-pokery.’” The court concluded that the tax was constitutional.

Willett’s belief in the primacy of individual liberty makes him a defender of religious as well as economic freedoms. As noted in a TV ad during his second re-election campaign, while working in the Texas attorney general’s office, Willett defended the state in a challenge to the display of a Ten Commandments monument on the grounds of the Texas Capitol and wrote an amicus brief supporting the inclusion of the words “under God” in the Pledge of Allegiance. In Matthews v. Kountze Independent School District, in 2016, a group of middle-school and high-school cheerleaders, through their parents, sued their school district after it prohibited them from displaying banners containing religious signs or messages at school-sponsored events. The Texas Supreme Court held that their case was not rendered moot by the district’s change of policy. In a separate concurrence, Willett signaled his support for the cheerleaders’ claims: “It is unclear from this record which claims are live, and consequently, what this case means for religious liberty-Texans’ ‘natural and indefeasible right to worship Almighty God according to the dictates of their own conscience.’” “But,” Willett concluded, “answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution.” In Pleasant Glade Assembly of God v. Schubert, in 2008, Willett joined a ruling dismissing a tort claim against a Pentecostal church for emotional distress suffered after “laying on of hands”; the court concluded that the “Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in ‘laying hands’ are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute.”

Willett is more inclined to defer to the legislature in cases that he does not view as impinging on individual economic or religious liberty. For example, in Morath v. Taxpayer and Student Fairness Coalition, in 2016, he wrote a decision for a unanimous court that upheld the Texas school-funding system against challenges under the Texas Constitution, for the first time in decades. In his words, “Judicial review … does not license second-guessing the political branches’ policy choices, or substituting the wisdom of nine judges for that of 181 lawmakers. Our role is much more limited, as is our holding: Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.”

Willett’s opinions have not hurried to embrace same-sex marriage. In State v. Naylor, in 2015, the court rebuffed the state’s attempt to intervene in a civil action stemming from a same-sex divorce. Willett dissented, insisting that the attorney general should be permitted to “make his argument that Texas law imposes an absolute jurisdictional constraint and constitutionally prohibits a judge not only from performing a same-sex marriage but also from dissolving one.” In In re State in 2016, after the U.S. Supreme Court had invalidated state laws banning same-sex marriage in Obergefell v. Hodges, Willett again emphasized the “Legislature’s unqualified command that the State’s chief legal officer be afforded the opportunity to defend the constitutionality of Texas law.” “This was an invalid invalidation. No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general’s statutory opportunity — and constitutional duty — to defend it.” And in Pidgeon v. Turner, in 2017, Willett joined the majority in holding that Obergefell does not clearly require states to extend spousal benefits to same-sex couples.

In other civil-rights cases, Willett has ruled both for and against plaintiffs. In Waffle House v. Williams, in 2010, he wrote an opinion holding that an employee’s suit for negligence in a sexual-harassment case was pre-empted by her claim under a state anti-harassment statute: “But here, as Williams admits, her two claims against Waffle House stem from the same boorish and objectionable conduct. Where the gravamen of a plaintiff’s case is sexual discrimination that lies at the heart of the TCHRA, allowing negligence damages for a TCHRA violation would eclipse the Legislature’s prescribed scheme.” Willett’s previous statements about women’s-rights issues drew questions from Senate Democrats during his confirmation hearing. While working for Bush in the governor’s office in 1998, Willett wrote a memo objecting to a draft proclamation in honor of a Texas businesswomen’s group, in which he criticized, among other things, “the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), … [and] sexual discrimination/harassment.” In 2008, in Davis v. Fisk Electric Co., Willett  joined a ruling for the plaintiff in a race-discrimination case after the defendants in the suit used race-based peremptory challenges to exclude five of six African-Americans from the jury panel.

Since he joined the 5th Circuit, Willett has written two opinions, both in sentencing cases. In United States v. Maturino, the defendant argued that the judge improperly enhanced a sentence for possessing hand grenades based on the number of devices involved because almost all the 144 grenades were inert. Willett wrote for the panel that although “Maturino’s plan to stockpile live grenades turned out to be a dud, … the sentencing court properly considered what he pursued, not what he possessed.” And in United States v. Godoy, Willett tackled a thorny issue: whether the incorporation into the Sentencing Guidelines of 18 U.S.C. § 16(b), the “residual clause” in the federal definition of a “crime of violence,” violates the Constitution’s due process clause. In Sessions v. Dimaya, the Supreme Court this term held that the use of a similar provision in the crime-based removal provisions of the immigration laws was unconstitutionally vague. Godoy contended that Dimaya precludes the use of the residual clause to enhance his sentence. The panel rejected Godoy’s assumption that “the Due Process Clause’s vagueness doctrine applies universally to every context in which § 16(b) is used.” Willett emphasized that the Sentencing Guidelines, unlike the mandatory removal provisions at issue in Dimaya, are nonbinding, and concluded that when, as in this case, the catch-all provision “is used by the nonbinding Guidelines solely for definitional purposes, vagueness-doctrine principles do not apply.”

Willett is likely the only person on the president’s list who was once a rodeo rider. He lives in Austin with his wife and three children.

Andrew Hamm and Aurora Barnes contributed to this post, identifying, reviewing and analyzing the cases summarized above.

Recommended Citation: Edith Roberts, Potential nominee profile: Don Willett, SCOTUSblog (Jun. 29, 2018, 2:53 PM),