[ Report Home | Previous Page | Next Page ] TEXAS SUPREME COURT JUSTICE PRISCILLA OWEN I. Owen’s Judicial Career A. Activist and Extremist Jurist

The Texas business lobby launched a major campaign in the late 1980s to push the state Supreme Court to the far right, an effort that bore its first fruit in 1988, when Chief Justice Tom Phillips and Justice Nathan Hecht both were elected to the court.²  “By 1991, conservative, activist judges had a majority on the court,” notes a 1998 law journal article.³  After Owen joined the court in 1995, she and Justice Hecht formed an extreme, right-wing voting bloc. “Since 1995, [Justice Nathan Hecht] and Justice Priscilla Owen have provided a solid block that is activist in its use of power and wholly conservative on substance,” noted Austin-based Court Watch’s analysis of the court’s 1998-1999 term.⁴  This Owen-Hecht bloc often spoke for the majority of that ultra-conservative court during Owen’s first several years on the court. After the rest of the court moderated its ultra-conservative positions in the late 1990s (following a 60 Minutes expose and the influence of then-Gov. George W. Bush’s more moderate appointees),⁵ however, Owen and Hecht became isolated and increasingly filed extremist dissents.⁶  Justice Hecht and Owen lead the court by far in the number of dissents that they have written or joined since Owen joined the court in 1995. Hecht lent his name to 110 of these dissents and Owen signed 87. Since the court’s more moderate turn in 1998, Owen has dissented 66 times, second only to Justice Hecht’s 86 dissents.

In its analysis of the 1999-2000 term, the court-watching publication Juris Publici noted that the court’s new majority consisted of five “moderate conservatives and judicial traditionalists (those who believe the court should limit its use of judicial power).”⁷  In contrast, “The conservative judicial activists whose views seemed to lead the court in previous years--notably justices Hecht and Owen--are now isolated dissenters on most votes.” The report found that Owen agreed with Hecht in 76 percent of the cases in which the court issued split opinions. In a law journal article, Justice Phil Hardberger, the chief justice of Texas’ 4th District Court of Appeals, noted four watershed 1998 cases in which the Texas Supreme Court surprisingly ruled on behalf of plaintiffs. Significantly, Owen dissented from all of these majority opinions, voting against the plaintiffs on every occasion.⁸

Examples of Owen’s activism abound. A recent Texas law requires minor women seeking an abortion to get parental consent unless a court finds that notification would not be in the applicant’s “best interest.” The majority opinion in In re Jane Doe 2 instructed trial courts on how to judge if notification would be in a minor’s best interest. Although the statute mentioned no such criteria, Owen’s concurring opinion criticized the majority for not requiring judges to find that the abortion itself would be in the applicant’s best interest. Owen’s activist plurality opinion in Ford Motor Co. v. Miles overturned a $40 million jury verdict, a court of appeals affirmance and years of well-established venue precedents. Although the court did not grant review on the venue issue (which had not been argued or briefed), Owen’s opinion nevertheless reversed and remanded on this issue.