I first learned of Texas Supreme Court Justice Don Willett on Twitter—fittingly—in 2013, when he asked me for a copy of my then-Twitter header image of the U.S. Supreme Court justices holding Care Bears (except Justice Scalia, who is photoshopped holding broccoli). Since that time, I’ve had the pleasure of meeting @JusticeWillett, who was more than happy to indulge me with a selfie.
He has now indulged me with an interview, too.
Willett’s flair for social media has earned him a write-up in the New York Times, an appearance on Fox News, the title of “The Tweeting Judge” by Twitchy, a spot on Law360’s “20 Attorneys Killing It On Twitter,” and the bipartisan legislative honor of being named the first official “Tweeter Laureate of Texas.”
@JusticeWillett’s social media presence makes him a unicorn in the judicial sphere. Few judges tweet, and even fewer are good at it. But Willett may be rarer in his jurisprudence, specifically, his commitment to judicial engagement: A Constitution-first approach that holds that when reviewing the validity of government actions, judges must judge.
Willett believes that judicial duty means taking the Constitution, its liberties, and its limits seriously—not putting a pro-government thumb on the scale. “Our Constitution exists to secure individual freedom, the essential condition of human flourishing,” Willett told me. “Liberty is not provided by government; liberty preexists government. It’s our natural birthright, not a gift from the sovereign. Our founders upended things and divided power to enshrine a promise, not a process.”
Willett’s recent concurring opinion in Patel v. Texas Department of Licensing and Regulation is an essential how-to manual in protecting individual liberty. In Patel, the Texas Supreme Court struck a requirement that commercial eyebrow-threaders complete 750 hours of coursework (none of which includes eyebrow threading) and pass two exams (neither of which tests eyebrow threading). The court ruled that in economic liberty cases, judges must actually weigh real evidence—not just accept the government’s purported good intentions at face value. Tested with real scrutiny, the licensing law didn’t have a chance and was struck down.
In his concurrence, Willett stated, “Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.” The case was decided under the Texas Constitution’s due course of law clause, not the U.S. Constitution’s due process clause. The latter is interpreted under the “rational basis” test—a rubber-stamp standard often replacing adjudication with abdication. Rational basis mandates judicial deference to government in all cases not involving a handful of rights the Court has elevated to “fundamental” status. As a result, judges applying rational basis regularly accept unsupported assertions from government, and even invent justifications if government’s lawyers aren’t creative enough to come up with their own. As Willett wrote in Patel, this approach makes limited government “entirely fictive” and “grants a nigh-irrebuttable presumption of constitutionality.”
In the eyebrow-threading case, the Texas Supreme Court adopted a stronger test—“Don’t Thread on Me”—for state constitutional claims. As Willett wrote, “Texans are… presumptively free, and government must justify its deprivations.” In other words, courts must put constitutionalism before majoritarianism and government whim. Judges must determine whether “government is seeking a constitutionally valid end using constitutionally permissible means”— a question focused on “real-world facts”—“without helping government invent after-the-fact rationalizations.”
Willett’s approaches to both judging and tweeting share a common purpose: to engage Americans and remove distance between them and their government.
Willett uses Twitter “to humanize and demystify” the courts. “The judiciary wields enormous power,” Willett explains, “but is utterly mysterious to most Americans. People know more about American Idol judges than Supreme Court judges. Done right, social media is a high-octane tool to boost civic awareness.”
He also emphasizes that Americans’ freedoms are protected—or not—far more by state court judges than by federal judges. “U.S. Supreme Court blockbusters dominate press coverage,” he says, “but 90-plus percent of American justice is dispensed in state courts.” That’s why he—a statewide-elected judge—connects with citizens via social media, calling it “political malpractice” not to.
Justice Willett tweets about law, culture, and politics in a lighthearted, non-contentious way. He is even lauded in a new ethics casebook for showing how “to offer information and humor and to reflect [his] personality while maintaining a high level of professionalism.” “I diligently self-censor and aim for carefulness,” Willett told me, “A few cardinal rules: I don’t throw partisan sharp elbows or discuss pending cases. I keep things light and upbeat. Whether you’re crafting a 140-page opinion or a 140-character tweet, judges must always be judicious.” However, his tweets don’t read as constrained—just fun.
Similarly, Willett approaches his day job in a way that upholds the Constitution and makes government more accountable. Instead of blindly accepting any rationale government comes up with to justify its actions, he favors judges doing their jobs, i.e. judging whether or not a law violates the Constitution.
As Willett explains in his Patel opinion, “dogmatic majoritarianism can exact a ruthless price” [emphasis added]:
Courts need not practice deference to government and accept ridiculous government assertions that contradict constitutional principles. However, Willett is fine with judicial deference defined as deference to the Constitution—principled, objective judging that puts people’s constitutional rights and liberties before governmental whim.
This doesn’t mean Willett is trying to prevent the legislature from legislating. He believes a muscular judiciary is necessary to preserve liberty, as a complement to—not a replacement for—a properly functioning legislature. His opinion in Patel emphasizes that it is neither judicially virtuous nor constitutionally principled to shrug when the political branches exceed their constitutionally delegated powers.
But as long as the legislature acts within constitutional bounds, judges must enforce even laws they personally dislike. Willett explains, “Judges should always behave judicially by adjudicating, never politically by legislating. I leave policy to policymakers. They’re preeminent, but they’re not omnipotent. In other words, lawmakers decide if laws pass, but judges decide if laws pass muster. There’s a fateful difference between activist judges who concoct rights and active judges who dutifully protect the rights our Framers actually enshrined.”
Taking on the judicial norm requires not only courage, but intellectual vigor, which Willett has in spades. He flourishes both within the confines of 140 characters, but he will also soon earn his fourth degree (an LLM in Judicial Studies from Duke Law School), and next year will be editor in chief of the revered scholarly journal for judges, Judicature.
Naturally, I was curious if Willett has received backlash for either his tweeting or judicial philosophy. “Twitter-wise, the response is overwhelmingly positive,” adding, “It’s uncommon for a Supreme Court justice to step out from behind the bench, and folks are astonished that fuddy-duddy judges can be authentic and engaging.” On the bench, he’s doing just fine, too. “Not every opinion I write is 9-0, but I’ve been elected statewide twice.” The latter point is an understatement, as Willett garnered the largest vote total in Texas history in his most recent election.
The Twitterverse is elated to see a judge who understands Twitter, while proponents of judicial engagement—like George Will—are elated to see a judge who heeds the Constitution’s limits on government power. Will recently hinted—and not subtly—that he wants Willett to fill the next vacancy on the U.S. Supreme Court. George Leef made the same point in a Forbes column. I asked Willett if he would prefer SCOTUS over SCOTX. “I don’t do demotions,” Willett cracked, “Plus, my wife and I call our prior stint in D.C. ‘the greatest thing we’ll never do again.’”
SCOTUS aside, Willett is widely seen as the leading candidate to replace Texas’s recently indicted attorney general. Willett politely declined to address the subject, calling it “highly unfitting” to discuss pending legal matters.
Willett is even influencing the 2016 race. Last night’s CNN debate moderator Hugh Hewitt tweeted that his Constitution Day reference in the debate was “courtesy of @JusticeWillett.” When nominations to the Supreme Court were mentioned in the debate, Texas governor Greg Abbott tweeted, “I’d recommend to whichever candidate wins to appoint @JusticeWillett to #SCOTUS. A proven conservative who won’t rewrite law. #txlege.”
Willett’s personal hero is his mother, who was “widowed at a young age and without a high school diploma.” He timed his formal Court swearing-in to fall on his mom’s 75th birthday.
“After dad died, mom hunkered down and waited tables at the local truck stop to support my sister and me,” Willett recounts, “In 55 years of waitressing, mom walked roughly from the earth to the moon—about 75 times around the perimeter of Texas. And every step she took brought a grateful son one step closer to the unfathomable privilege I have of serving 27 million Texans,” he said.
Embodying his mom’s ethic, Willett now protects the Lone Star State from unconstitutional abuses of government power. And case by case—and tweet by tweet—he brings the Constitution and the Supreme Court of Texas closer to Texans.
