Analysis: The Texas Supreme Court and the ruling class

The Texas Supreme Court on Jan. 15, 2020. Miguel Gutierrez Jr./The Texas Tribune

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Sometimes the job of a columnist is simply to say, “Read this story.”

If that’s all you require, read this story, “Speaking statistically, this GOP donor wants to convince you that money buys justice in Texas,” by The Texas Tribune’s Emma Platoff.

It’s about the highest civil court in Texas. More to the point, it’s about a system that is either set up to favor the rich, educated and powerful — or a system in the unfortunate position of operating honestly while seeming to function as if serving the elite were what it was designed to do.

Either way, it makes you mad enough to sue somebody.

This starts with Salem Abraham, a West Texas investor who is also an active donor in Republican politics. He got into a legal fight with BP America, the big oil company, over oil and gas rights on a property in the Texas Panhandle.

Abraham won in district court, won the first-level appeal and then lost to BP in the Texas Supreme Court.

It wasn’t close. It was unanimous. And honestly, this was one of those battles of the titans that mattered to the contestants and not so much to the average Texan.

But Abraham had the research capability to analyze his loss, to figure out why he lost a lawsuit he thought he had a very good chance of winning.

His conclusion was that big companies like BP, represented by top lawyers from firms based in tall downtown buildings in major cities, have a much-better-than-average chance of prevailing in the state’s highest civil court.

And he spices up that exploration by noting the correlations between contributions to the nine elected judges on that court and the success rates of nine particular law firms. His conclusion, as related by Platoff: “If you’re a billion-dollar company represented by one of nine elite law firms, you are 5.4 times more likely to win some or all of what you seek from the justices.”

He’s not saying this works like a specialized vending machine, where you put money in and get the ruling of your choice in return. In fact, he’s really measuring the size of his own miscalculation: He expected a particular result and thought he had the odds figured out when, in fact, the odds were against him the whole time.

He probably discovered some things already known to the people on and around the Texas Supreme Court. Justices there have complained for years — for decades — that putting judges on partisan ballots taints their reputations. First, it requires them to make sometimes uncomfortable alliances with whatever political parties they’ve joined. Worse, it has them taking contributions from the people most interested in what happens in the courtrooms of Texas — lawyers and the people and companies they represent.

Abraham’s post-op comes up short at its final step, failing to prove that the high court’s decisions are actually caused by those apparent conflicts of interest. It’s a possibility without certainty. It looks the way it would look if it were a specialized vending machine. But it could be something else, too.

The richest companies have the capabilities, whether they use them or not, to manage risk better than others. They hedge their bets. Then they hire the tall-building law firms that hire the best and most capable lawyers with the most experience.

That’s the kind of planning and preparation that makes the big dogs the big dogs. Maybe the judges like these lawyers and the cases they bring because they’re some of the best lawyers around. Imagine a car race where the most experienced, winningest drivers mostly drive for the other side.

That’s a good argument. But on the other hand, it would be interesting to get rid of the money in judicial politics, to separate the advantages of talent from the alleged advantages of campaign largess and political affiliation.

It would increase trust in the courts. And losers would have to find new things to blame for their losses.

Disclosure: BP America has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.