Senator Cornyn is being given a pass on his audacity. Today, he asked soon-to-be Supreme Court Justice Sonia Sotomayor about whether a decision in favor of marriage equality would be “interpreting” or “making” law. The implication, of course, is that such a holding would be “making law” and therefore illegitimate.
To her credit, Sonomayor was (barely) able to contain her exasperation. There isn’t a clear divide here, and the Court’s decision will be based on precedent, constitutional text and interpretation, and something called “evidence.”
But Cornyn should be the last person to complain about judges “making law,” because his own decisions on the Texas Supreme Court showed an astonishing lack of concern about existing law and precedent. There, he was willing — eager, really — overturn any precedent, however recent, that made life more difficult for insurance companies.
Most infamous in this regard is Boyles v. Kerr, 855 S.W.2d 593 (1993), in which Cornyn joined a majority in prohibiting a negligence lawsuit by a woman whose boyfriend had taped the two of them having sex and then showed it to his friends; according to the court, Dan Boyles owed no duty to Susan Kerr not to “negligently inflict” emotional distress on her. But this decision overruled a controlling case holding otherwise from only five years earlier.
Decisions are overruled all the time, but in this case the court didn’t bother justifying its turnabout with any substantial reasons, instead inveighing vaguely against “unlimited liability.” The real difference, of course, was that the court’s membership had shifted during the intervening five years; notably, Cornyn himself came to the bench in 1990 — between the two cases.
Cornyn was among the new, pro-insurance justices on a court that has been notoriously corruptible over the years. Time and again, the frustrated dissenters expressed a level of anger, and adopted an accusatory tone, that is startling. From Justice Doggett’s dissent in Boyles:
“[E]xcessive concern for the effect of every opinion on insurance companies seems to have become the predominant and overriding issue here, even to the exclusion of a woman’s most basic rights. Susan Kerr loses today because of the majority’s misdirected concern about the potential liability of insurers….”
Speaking of women’s concerns, I can’t let this post end without noting that Boyles sparked a conflagration of outrage, such that the court withdrew its original opinion and rewrote it to make it less offensive. In that earlier opinion, the court had displayed a shocking lack of sensitivity to the plaintiff’s injury, noting, among other minimizing facts, that she’d been able to have sexual relations after this humiliating incident. Here’s what the Women’s Advocacy Project (which provides social and legal services to victims of abuse) had to say about the court’s decision and language:
“The court has sent a message to all these Texans [who have suffered sexual and emotional abuse] that they are second class citizens. It defies logic to have a system of justice that will compensate the victim of a car wreck but that will refuse to compensate the recipients of the most devastating of emotional injuries. Perhaps more significantly, this Court has sent a message to these citizens that their injuries do not merit judicial redress, leaving them with no alternative but to take justice into their own hands.”
Well, that sounds ominous. But not a problem for now-Senator Cornyn, who continues to be more concerned about whether a “wise Latina” will make bad decisions because of her prejudices and radical world view.
Who’s the radical activist here? Cornyn asked Sotomayor: “Judge, what should I say to my constituents?”
That’s a good question, but his constituents might want him to talk about something other than he thinks.