« Josh Blackman on Foreign Emoluments
Michael Ramsey
| Main | Brian Slocum: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy
Michael Ramsey »

11/30/2016

Mark Pulliam on Justice Don Willett (and John McGinnis on Scalia'a Virtues)
Michael Ramsey

This is from a while back, but even more relevant now -- at Liberty Law Blog, Mark Pulliam, Don't Thread on Me (analyzing in detail the Texas Supreme Court's decision in Patel v. Texas Department of Licensing and Regulation [the eyebrow-threading case], including the now-famous concurrence by Justice Don Willett).  From the introduction:

The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.

Patel drew notice from libertarian legal scholars for “reinvigorating ‘substantive due process,’” and “rejecting the Lochner bogeyman.” Reason’s Damon Root called Justice Don Willett’s concurring opinion “the most libertarian legal opinion ever written.” And University of Tennessee law professor Glenn Harlan Reynolds, proprietor of the Instapundit website, lauded the Institute for Justice in USA Today for its work challenging excessive occupational licensing regulations.

My present inquiry is simply whether the various opinions in Patel are sound from a doctrinal or “originalist” perspective—did the court correctly apply the relevant law? ...

Also from Mark Pulliam, at Empower Texans: Good News and Bad News on School Finance in Texas (analyzing another Willett opinion).  From the introduction:

The long-awaited decision from the Texas Supreme Court in the school finance case, Morath v. Texas Taxpayer and Student Fairness Coalition, was issued on May 13, 2016. (The case was argued over eight months earlier.) The court’s jargon-laden 100-page (!) decision can be summarized with this sentence: “Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.”

The unanimous decision, written by Justice Don Willett, is being described by headline writers as a “win” for the state, but in reality it is a mixed bag. ...

RELATED:  Also at Liberty Law Blog, John McGinnis: Scalia’s Successor Needs His Virtues.

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues.  First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it.  The highest honors from our legal and academic establishment all go to justices who begin or  drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.

...

Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written. Originalism is gaining ground because of its intellectual power and a justice can deepen its attractiveness through his or her writings. ...

(With special positive mention of two of the "Trump 21").

REMINDER:  Andrew Hyman has been adding to his outstanding resources page on the potential nominees.