SCOTX 2024 Year-End Update
The Supreme Court of Texas has wrapped up the 2024 part of its term, and with it the leadership of Chief Justice Hecht—a living legend and one of the most consequential jurists in the Court’s history. That he (and his post-sub memos) will be dearly missed is an understatement. Just a fraction of his contribution to the rule of law in Texas has been memorialized in seven volumes of the Hecht Reports (pictures courtesy of the Court's LinkedIn account):
Opinion Count at the end of 2024
Today, December 31st—a Tuesday—the Court released a flurry of opinions. I can’t remember the last time the Court released an orders list on a day that wasn’t Friday. Indeed, I scrolled as far back as August 2008 in the Court’s public calendar (before which the calendar doesn’t show anything scheduled), and all the released orders fell on Fridays.1
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In case it wasn’t obvious, the reason the Court has made an exceptional departure from its typical Friday orders release is the Chief Justice’s constitutionally compelled retirement2 (plus the fact that the Court was mostly closed last week because of the Christmas Holiday).
And the Chief Justice has certainly left with a bang. The Court issued a total of 21 opinions today. Here’s how that number breaks down: 10 are signed majority opinions, 4 are concurring opinions, 2 are dissenting opinions, and 5 are per curiam opinions.
Here’s how the opinions break down by justice:
NLH: 3 (all signed majority opinions issued today)
DHL: 2 (1 signed majority opinion and 1 concurrence in the denial of a PFR)
JSB: 2 (1 concurrence in the denial of a PFR and 1 dissent in a merits case)
JPD: 1 (1 signed majority opinion)
JDB: 3 (2 concurrences in the denial of mandamus petitions and 1 concurrence in a merits case)
BB: 3 (2 signed majority opinions and 1 concurrence in a merits case)
JNB: 4 (2 signed majority opinions, 1 concurrence to a per curiam, and 1 dissent in a merits case)
RAH: —
EAY: 9 (4 signed majority opinions, 2 concurrences in merits cases, 1 concurrence in the denial of a PFR, 1 concurrence to the granting of an emergency motion, and 1 statement in the denial of an amicus motion to participate in oral argument)
Some interesting things to note so far:
All the opinions released today in merits cases were, unsurprisingly, argued in September and October (there were no arguments in November). That means all the opinions from today were released ~100 days after oral argument.
By my count, there are 17 cases argued in September and October for which the Court has not yet issued an opinion. All opinions from cases argued in December remain outstanding.
On December 20th, the Court issued one opinion: 23-0006, Ohio Casualty Insurance Co. v. Patterson-UTI Energy, Inc., written by Justice Young. This is the Court’s second signed opinion of the term (the first being 24-0678, In re Dallas HERO, by Justice Busby), but the first signed opinion of the term from an argued case. What is notable about Ohio Casualty is how quickly it was written. It was issued 51 days after argument. That’s fast. For perspective, the fastest opinion written from last term (23-0037, Occidental Petroleum v. Citation 2002, by Justice Bland) was released 57 days after oral argument. For more perspective, there were some opinions from last term that took almost 300 days to release after oral argument.
Oddly enough, though, the time between filing the petition for review in Ohio Casualty to the issuance of the opinion was very long—715 days. I was curious about the discrepancy, so I looked at the docket, and I found the explanation: there were 15 motions for extension of time filed (all of which were granted), and the respondent had also moved to reset the date of oral argument. That’s a lot of delay. For comparison, the longest time between the PFR filing and release of the opinion from last term was 1030 days,3 and there were only 7 motions for extension of time in that case.
The most common subject matter the Court has addressed so far is Civil Procedure, with a count of 8. In second is a three-way tie (with 3 each) between Constitutional, Immunity, and Insurance.
The court of appeals most represented at the Court so far is the 5th (Dallas) with 6 cases, all of which contain a judgment of reversal of some sort. Expectedly, the most represented county is Dallas—again at 6.
The Court has issued 15 per curiam opinions so far this year. At this time last year, the Court had issued 14. If the Court keeps the exact same pace, then we could expect about 25 more before the Term ends.
“To one who has faith, no explanation is necessary.”4
Most opinions from the Court have been per curiams (15 per curiams to 13 signed majority opinions). And one of those per curiams—23-0010, Walker v. Baptist St. Anthony’s Hospital—is interesting because Justice Bland, joined by Justice Boyd, wrote a concurring opinion. It’s rare for a justice to write separately when the Court issues a per curiam. I presume that’s because per curiams are reserved for the relatively easier cases in which the Court is wearing its error-correcting hat and not necessarily resolving an appeal that meets the traditional criteria for hearing oral argument. Justice Holmes, for example, once expressed reluctance in publishing a dissent to a per curiam opinion because it did not “seem that an important principle [was] involved” and thus there was no “public advantage to be gained from a statement from the other side."5
In any event, the reason precipitating Justice Bland’s concurrence in Walker was not a disagreement on the merits of the case but instead a disagreement as to what extent the Court needed to explain its resolution of the merits. For context, the Texas Supreme Court, unlike the U.S. Supreme Court, does not grant review on specific questions presented by a petition.6 Its jurisdiction instead extends to “appeals” that are important to the jurisprudence of the state,7 which may occasionally include ancillary issues not important to the state.
So this more holistic approach, so to speak, raises an interesting question for a court of discretionary review whose jurisdiction is confined only to “important” issues: How, if at all, must the Court address those unimportant issues that are still necessary to resolve the appeal over which it granted review? In Walker, we know that at least six justices concluded that the Court need only state its conclusion about the issue (e.g., “the district court did not abuse its discretion”) and not provide further explanation.8
Simplifying a bit, the issue in Walker was whether the plaintiffs had submitted a sufficient expert report in their medical-malpractice case. The defendants challenged (1) the expert’s qualifications, (2) the report’s explanation of causation, and (3) the standards of care. The court of appeals ruled in favor of the defendants on the second ground—that evidence of causation was lacking. Importantly, because that issue resolved the appeal, the court of appeals declined to address the other two grounds.9
In a per curiam opinion, the Court reversed, holding that the expert reports had sufficiently explained causation. So that left the other two grounds for affirmance of the court of appeals’ judgment and how to address those. Rather than provide a “fulsome explanation” as to why the court of appeals also erred on those two grounds, the Court simply said that the issues lacked merit and that further explanation why “would not add to the jurisprudence of the State.” The Court also pointed out that nothing in the appellate rules of procedure holds the Court “to a particular explanatory standard when . . . carrying out [its] discretionary review function,” that further explanation would be an unwise use of “scarce judicial resources,” and that resolving the issue itself rather than remanding would be “in the interest of judicial economy.”
Justice Bland, for her part, agreed that the other two challenges lacked merit but believed they warranted—indeed, required—explanation. It’s a little difficult to pinpoint exactly where that sort of requirement would come from, but I read her concurrence as suggesting it has both constitutional and procedural dimensions: the former being grounded in due process and the latter being grounded in one of the Court’s prior statements that it would “examine points not considered by the court of appeals.” (Emphasis added.) Justice Bland also suggested that it was a matter of sound judicial policy, stating that the lack of explanation “occludes the transparency of our legal system and disappoints the reasonable expectations of the parties seeking redress.”
I won’t comment on the disagreement, but I’ll say that it comes at an interesting point in time for two reasons.
First, as I've pointed out before, we’re beginning to see many more separate opinions from the justices, in both merits and non-merits cases. That trend, coupled with the per curiam in Walker, signals a subtle shift in focus and resources from the Court.
Second, the disagreement about whether and when a court must explain its decision comes on the heels of a notable dissenting opinion from Judge Andy Oldham in Environment Texas Citizens Lobby v. Exxon, in which he explained the origin of judicial opinions. According to Judge Oldham, opinions were never historically necessary; the only thing that mattered at the end of the day was the judgment. As he put it: “Rendering a judgment is both necessary and sufficient to exercise the judicial power.” I won’t recap the full history, but it seems consistent with what I've noted before about seriatim opinions.
The Court, alas, is losing a giant of the law. But I’ll be eager to see (1) how the Chief will use his seemingly endless energy post-retirement and (2) who the next justice and chief justice will be. I expect we’ll find out as early as tomorrow.
There is, to be sure, frequent occasions in which the Court will issue stays and other miscellaneous orders on weekdays other than Friday. What I’m referring to is an actual list of orders containing opinions and dispositions on pending petitions and motions for rehearing.
The U.S. Supreme Court began using the writ of certiorari in 1928 to choose questions presented within cases. The practice is traced back to Olmstead v. United States, a famous Fourth Amendment wiretapping case.