Ultra-Conservative Judicial Activism on Reproductive Choice, Civil Rights, Consumer Rights and Worker Rights Demonstrates That Owen Lets Personal Ideology Trump the Law

People For the American Way President Ralph G. Neas today called on the Senate Judiciary Committee to reject the confirmation of Priscilla Owen to the US Court of Appeals for the Fifth Circuit. Neas stated that Owen is a far-right ideologue whose judicial philosophy threatens fundamental rights and liberties. Neas also released a detailed PFAW report that documents Owen’s troubling history of right-wing judicial activism as a justice on the Texas Supreme Court.

“President Bush has said that he wants judges who will interpret the law, not make it,” said Neas. “In Priscilla Owen, he has found the exact opposite. Owen’s record demonstrates her willingness to ignore the law in pursuit of an ultra-conservative agenda, and that agenda gets in the way of her responsibilities as a jurist.” Owen’s nomination is also opposed by a broad coalition of Texas-based groups, including organizations representing civil rights, women’s rights, labor and consumer issues.

Neas said Owen’s disturbing record on reproductive choice and employee rights would be especially harmful to the citizens of the Fifth Circuit, the most populous and diverse appeals circuit in the nation. “Because the U.S. Supreme Court accepts fewer than 90 cases a year, the federal appeals court is the court of last resort for millions of Americans,” said Neas.

“As our report demonstrates, Justice Owen is far to the right of the conservative majority on the Texas Supreme Court,” said Neas. Many of the justices who have frequently opposed Owen’s dissenting opinions were appointed by then-Governor Bush, including current White House Counsel Alberto Gonazales. In one case, Gonzales wrote that Owen and the other dissenting justices were committing “an unconscionable act of judicial activism.”

Owen’s judicial activism is particularly demonstrated in her dissenting opinions, which reveal her efforts to make the law rather than abide by her obligation to interpret it. PFAW’s report examines many of the dissenting opinions authored or joined by Owen during her seven and a half years on the Texas Supreme Court. The analysis establishes that Justice Owen has attempted again and again to overrule the law when it clashes with her personal ideology. In many cases, her targets are critical civil or individual rights. The report addresses four broad areas, and summarizes Owen’s failure to uphold the legislature’s intent in each.

Discrimination and Employee Rights

In several cases, Justice Owen has dissented from rulings by the Texas Supreme Court affecting the rights of employees, including the right to be free from invidious discrimination. In one such case, Owen embraced an interpretation of a key Texas civil rights law that would have effectively rewritten part of that law and made it much more difficult for employees to prove discrimination. In another case, the majority explained that the dissent “defies the Legislature’s clear and express limits on our jurisdiction.” Owen’s dissenting views in these cases were rejected by the Court majority, including justices appointed to the Court by then-Governor Bush.

Reproductive Rights

In 1999, the Texas Legislature enacted a law requiring that, with certain exceptions, a minor’s parents be notified before she could obtain an abortion. The state’s Parental Notification Act provides a judicial bypass procedure enabling a mature, sufficiently well-informed minor to obtain a court order permitting an abortion without parental notification. In several cases decided by the Texas Supreme Court during 2000 involving the bypass provision, Justice Owen vigorously dissented from the Court’s rulings, advocating extremely restrictive interpretations or applications of the bypass law that would have effectively rewritten the law. In one of those cases, Owen’s extreme views led current White House counsel Alberto Gonzales, then a colleague on the Texas Supreme Court, to charge Owen and her fellow dissenters with “unconscionable” judicial activism.

Environmental Issues and Public Information Rights

In several recent cases, Justice Owen has dissented from rulings protecting public information rights and the environment. In one case, the majority criticized her dissent for consisting mostly of “inflammatory rhetoric” and arguments “based on a flawed premise.” In another, four justices in the majority wrote that Owen’s dissent “effectively writes out” the state public information law and ignores its purpose. The Court majority that rejected these dissents included justices appointed by then-Governor Bush.

Rights of Consumers and Other Citizens

Many of Justice Owen’s dissents have been in cases in which the majority has upheld the rights of consumers and other citizens. These dissents by Owen have consistently favored businesses and government, contrary to past precedent and the legislature’s judgment. Her dissenting views would have seriously impaired the rights of ordinary citizens to have access to the courts and to obtain redress for a variety of injuries. In some of these cases, Owen’s dissenting positions have been dismissive of juries and of jury findings. For example, in one such case, Owen’s dissenting position was criticized by other justices as an attempted “judicial sleight-of-hand to circumvent” the Texas Constitution concerning jury trial rights. In other cases, Owen would have ignored the plain meaning of statutes and read into statutes provisions that were not there or nullified provisions that were there, effectively rewriting the law. In one case, then-Justice Alberto Gonzales specifically criticized an Owen dissent as an effort to “judicially amend” a Texas statute. Other justices appointed by then-Governor Bush were also part of the Court majority that rejected these dissents

“In numerous dissents as a Texas Supreme Court Justice, Owen has taken positions that would have effectively rewritten the law or disregarded the express language of the law, often to the detriment of the rights and interests of ordinary Americans,” the report concludes. “The Senate Judiciary Committee should reject Priscilla Owen’s confirmation to the United States Court of Appeals for the Fifth Circuit.”