Supremely Productive - Not!

Slowpokes or Ideologues?

Court critics' focus on backlog misguided: Hechtian approach to case disposition may be at fault

Too much ink has been spilled already over the alleged deterioration of the Supreme Court's case clearance rate. If that were really the problem, it could be solved all too easily: The members of the Court could simply let the conveyor belt system take most petitions into oblivion by automated disposal. If a good number of cases remain pending the reason is that these cases survived the initial screening. At least one member, and later invariably more than one, deemed an issue in the case worthy of further examination. Recent data indicates that the Court, whose composition has changed, is accepting more cases for review on the merits.

For a court of last resort that excersises what is essentially discretionary review, a higher acceptance rate is not inherently a bad thing.

This is not to say the criticism aired by the media and court watchers is unwarranted. But the focus should not be merely on one indicator - disposition speed; it should be on productivity overall, as well as on substantive results.

While the evaluation of the jurisprudential significance and impact on different categories of litigants of the Court's decisions and opinions cannot easily be quantified, and is in any event subject to political and philosophical disagreements, indicators of productivity of the court as an institution, and of individual justices, are readily available.

See the pdf version of the FY 2007 Annual Report, to which the Texas judiciary's webmaster-in-chief has finally placed a link on the appellate courts' portal pages.

Two things are striking:

1. The inferior courts of appeals work much harder

Although the case load of the supreme court is comparable to those of the large metropolitan courts of appeals, it issues a comparatively small number of opinions: A total of 170 in FY 2007, and that includes the separate opinions (dissents and concurrences). 69 of the merits opinions were issued as per curiam opinions, which are on average much shorter.

By contrast, the First Court of Appeals issued 1,234 opinion in the same time period, 665 of which were original signed opinions on the merits. While it is true that this nine-member court sits in panels of three and thus divides the workload, its opinion production still puts the Supremes in the shade, not to mention that the court of appeals justices still have to keep up with their colleagues' work to maintain uniformity for the court as a whole both in its civil and criminal jurisprudence. The Supremes, by contrast, do not even have to deal with criminal law issues, since those appeals (with the exception of appeals by juvenile defendants) go to the Court of Criminal Appeals.

2. The same picture emerges when we look at individual justices: The CoA judges keep busy - very busy - and it shows

On the Supreme Court, the most prolific jurist, Nathan Hecht, wrote 32 opinions, only eight of which were deciding majority opinions. Compare that to Justice Terry Jennings (also one of the most original thinkers in the entire state of Texas judging by the number of separate opinions) who wrote 164 opinions in the same time period, Justice Evelyn Keyes, who penned 157, or Justice George C. Hanks, Jr., who - unlike his two aforementioned colleagues - rarely disagrees with fellow panel members and produced 142.

Justices with such work ethic would probably clear up the high court's backlog by year's end.

3. 100+ Opinions a year per judge is the norm and should be set as an eminently feasible bench mark

Almost every intermediate appeals court judge delivered more than 100 opinions annually, thus proving that kind of output to be a realistic goal. (The major exceptions are those who did not hold the office for the entire year and did not have their opinion productions pro-rated in the official statistics.)

Nor can it be said that the courts of appeals face less complex issues and can thus process more cases. After all, the Supreme Court hears precisely the same legal issues when they are taken to it by parties wanting a second or third bite at the appellate apple. It's no different with original proceedings. The Supremes won't normally entertain a mandamus petition unless it has previously been presented to the intermediate court in the appellate district in which the trial court is located. Occasionally, lower appeals court justices even break new legal ground, as did Justice Hanks in recognizing the waiver-by-conduct theory in sovereign immunity law, and Justice Keyes in passing judgment on the enforceability of a contract between spouses providing for the destruction of their frozen embryos in the event of divorce. In both cases the Supremos denied review, and thus let the new precedents stand.

So what's wrong with the current Texas Supreme Court? - Merely lazy or side-tracked?

If the "laziest" appellate court judges churn out at least one hundred opinions a year, what does that make the most productive member of the high court? - Not even to mention Justice Green, who - though not known to support the environmentalist agenda of the party of like name - helped save a lot of trees by turning in a whopping total of four.

Perhaps the real problem is the High Court's agenda - and its members' stubborn determination to squeeze, twist, and mold the case law so that it will support the substantive results they want to attain.

Indeed, if most of the courts work hours, energy, and its considerably intellectual prowess is tied up trying to explain -- in reams of pages -- why a statute that says a city may be sued does not mean that the city may actually be sued - precedent and common sense notwithstanding - or why a church should be allowed to run a diploma mill where others are not permitted to do so, and are in fact fined if they ignore the law, then there is obviously less time to mete out justice in other cases (or less time to visit injustice upon other litigants, depending on viewpoint). See, respectively, Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006)(44 Page Opinion by Hecht) and HEB Ministries, Inc. v. Texas Higher Education Coordinating Board, No. 03-0995 (Tex. Aug. 31, 2007) (45 Page Opinion by Hecht)