Friday, February 12, 2016

Justice Willett, Mufasa, and the Shadowy Place

The written opinions of Justice Willett of the Texas Supreme Court
Justice Don Willett
never disappoint--at least for fans of good legal writing. Justice Willett's writing style, devoid of the legalese that plagues so many judicial opinions, is crystal clear, and his opinions are conversational and interesting.

A few weeks ago, the Texas Supreme Court decided a high-profile case involving Texas cheerleaders' right to put Bible verses on the signs they hold up at sporting events. The Court didn't make any substantive rulings on the merits as the case was before the Court on a mootness issue, In his concurrence, Justice Willett evokes images from Disney's The Lion King to (gently) suggest to the litigants and the trial court that the Court needs clarification on the trial court's rulings before the case (presumably) comes back to the highest Texas Court on appeal again.

The concurrence is worthy of a read, even if you care nothing about the issues in the case. Justice Willett's writing draws the reader in, like a good novel you can't put down. I can't do it writing "justice," so I'll just quote some of my favorite parts and let you read it for yourself:

One of the more memorable scenes in The Lion King occurs as Mufasa and Simba sit high atop Pride Rock overlooking Mufasa’s kingdom. In this granddaddy of all father-son moments, Mufasa shows Simba the territory he will inherit as king: “A king’s time as ruler rises and falls like the sun. One day, Simba, the sun will set on my time here, and will rise with you as the new king.” Simba is awestruck: “And this will all be mine?” “Everything,” says Mufasa. “Everything the light touches,” murmurs Simba in wonder. But then Simba spots dimness in the distance and turns to Mufasa for an explanation: “What about that shadowy place?” Mufasa replies, “That’s beyond our borders. You must never go there, Simba.” 

In narrowly deciding that the school district’s policy change did not moot the controversy in this case, the Court today rightfully stays within the borders of its authority, and I concur in full. I write separately, however, to ask, “What about that shadowy place?”


Bottom line: We don’t know. What does the trial court’s order accomplish? What claims have been preserved? What claims have been waived? In our pitched adversarial system, it is not uncommon for litigants to talk past each other, and uncertainty pervades the parties’ briefs to this Court. But answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution. Because this is an interlocutory appeal, the Court appropriately does not address those core merits issues, rendering Mufasa’s admonition that Simba “never go there” inapposite for the moment. 

But if this case returns to the trial court, a future appellate court, including this one, may well be required to go there. My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders’ claims.

The case is Matthews v. Kountze Independent School District. You can find all opinions in the case here.

Happy Friday!

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