Texas Supreme Court Justice Don Willett has been appointed by Donald Trump to the 5th Circuit Court of Appeals. The 5th Circuit covers Texas, Louisiana and Mississippi. Willett is perhaps best know as a minor celebrity Tweeter with almost 100,000 followers – unprecedented for a judge. As an elected official in Texas that is probably okay. With a lifetime federal appointment it remains to be seen if Willett will continue on Twitter.
Willett is a conservative of a different mold. Traditional conservative judicial practice remains deferential to legislative enactments. That is, statutes and regulations are rarely struck down. Rather, the traditional conservative judicial approach is to interpret a law or regulation to achieve the desired result. In Texas, a prime example is the Texas Whistleblower Act, which the Supreme Court has “interpreted” into a utterly meaningless law that provides almost no protection for any whistleblower.
Willett’s approach is different and he appears to be an unabashed judicial activist for the right. Willett’s most famous opinion is a concurrence in Patel v. Texas Dep’t of Licensing and Regulation – known as the “eyebrow threader” case. Texas required eyebrow threaders to obtain a license which required 750 hours of training. The Texas Court struck down the law, but it was Willett’s concurrence that drew the most attention. Some view it as the most libertarian judicial opinion written in decades. Willett appears to be ready to strike down any law that interferes with his view of “economic liberty.” The question will be how far does his view of economic liberty extend. Almost every statute or regulation dealing with business activity is some restraint on economic freedom. The real question is who gets to decide. In the Lochner era, the courts made the decisions and that doctrine was used to strike down minimum wage, child labor and other laws. The opinions were always couched in defense of individual economic liberty, but the effect typically was to provide business with unfettered freedom in the market place to do as they pleased regardless of the consequences. Will Willett attempt to usher a new era of Lochnerite decisions. It remains to be seen how far his view of economic liberty extends and whether he will apply it to protect the actual economic liberty of individuals or in service of an unregulated business environment.
For those who are interested, the Texas Observer has a thoughtful piece on Willett.