Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.(1)
Texas Supreme Court justices are elected for six-year terms.(2) The elections are staggered, so that approximately three justices run for reelection every two years.(3) In 1945, the legislature amended the Texas Constitution to require the Texas Supreme Court to be composed of nine justices.(4) Due to the constant flux of justices, the high court provides a unique perspective on state constitutional jurisprudence. In addition, Texas is one of only two states, the other being Oklahoma, to have a bifurcated appellate system dependent on criminal or civil subject matter.(5)
This High Court Study explores the trends of state constitutional adjudication at the Texas Supreme Court between 1989 and 1998.(6) Part II discusses the individual justices, terms served, political affiliations, and philosophical views.(7) Part III examines the high court's methodology for deciding issues implicating both the Texas and Federal Constitutions and discusses the historical background of the freedom of speech, the due course, and the equal protection clauses of the Texas Constitution.(8) Part IV is divided into two substantive sections: (1) freedom of speech and right to privacy,(9) and (2) equal protection and due course.(10) By examining divided decisions in these areas from 1989 to 1998, the justices' individual methodologies with respect to state constitutional adjudication, as well as stances on substantive issues, will become apparent. Finally, this Study concludes that while the Texas court in the mid-nineties was predominately independent and protected individual rights, the court today relies primarily on federal constitutional case law of the U.S. Supreme Court, demonstrating the Texas court's movement away from independent state constitutional adjudication.
II. THE TEXAS JUSTICES FROM 1989-1999
In 1987, Chief Justice Thomas R. Phillips, a Harvard Law School graduate, was appointed to the Texas Supreme Court by Governor Bill Clements to replace retired Chief Justice John Hill who resigned in the middle of his term.(11) Chief Justice Phillips is a Republican who previously sat on the Harris County District Court.(12) After his interim appointment to the state's high court, Chief Justice Phillips was elected in 1988 to serve the two-year remainder of Chief Justice Hill's term and was reelected in 1990 and 1996.(13) Chief Justice Phillips is only one of the two justices from 1989 remaining on the court today.(14)
In addition to Chief Justice Phillips, five other justices were elected to the Texas Supreme Court in 1988: Nathan L. Hecht, Lloyd Doggett, Raul A. Gonzalez, Eugene A. Cook, and Jack Hightower.(15) Justice Hecht, a Republican, was elected to a six-year term after serving on the appellate court in Dallas from 1986 to 1988.(16) In addition to Chief Justice Phillips, Justice Hecht remains on the court today.(17) Justice Doggett, a Democrat, was a practicing attorney in Austin and a state senator from 1973 to 1984.(18) Justice Gonzalez, a Democrat, was elected to a six-year term after his interim appointment to the high court in 1984.(19) Before serving on the court, Justice Gonzalez sat as an appeals judge and a trial court judge and was the "first Hispanic to be elected to a statewide office in Texas."(20) Justice Cook, a Republican, was also appointed in 1987 by Governor Clements and was elected to serve the remaining four-year term in 1988.(21) Finally, Justice Hightower, a Democrat, was elected over Governor Clements's interim appointee.(22) Before election to the Texas Supreme Court, Justice Hightower served in the state senate and as a United States representative.(23) In addition, Oscar Mauzy, Franklin Spears, and C. …