Texas High Court Term Begins With Open Seat as Abbott Delays

The Texas Supreme Court begins its new term Tuesday short one justice.

Gov. Greg Abbott (R) won’t fill a vacancy in time for the start of oral arguments, delaying an appointment that’s been on his radar since April, when Justice Jeff Boyd (R) announced he wouldn’t return in the fall.

The indecision continues a pattern for Abbott, who has delayed naming a replacement in three of the six seats he’s filled previously on the high court. He sat on an appointment for more than four months in 2021, and another for more than two months in 2020. In 2019, when a bench opened midway through the term, Abbott left it vacant for almost two months.

“I just think he wants to be very sure,” said former Chief Justice Nathan Hecht, now of Jackson Walker. “He takes this very seriously.”

Abbott, famously tight-lipped on his appointments, won’t give a timeline for his selection.

“An announcement on an appointment will be made at a later date,” his press secretary, Andrew Mahaleris, said Monday.

The Legislature isn’t in session, which means Abbott’s pick likely won’t be subject to confirmation in the Texas Senate. Instead, that person will run for the Republican nomination in the March primary without ever facing a confirmation vote.

However, court watchers think the delay is more likely a result of a particularly busy summer in Abbott’s office, than strictly to let Abbott’s nominee skip the legislative process.

In the five months since Boyd announced his retirement, Abbott closed the books on a Legislative session, responded to deadly floods over the Fourth of July weekend in the Texas Hill Country, and ordered back-to-back special sessions to address a controversial mid-decade redrawing of Congressional maps pushed by President Donald Trump.

His general counsel’s office, tasked with vetting judicial appointments, took on the unusual effort of asking the Supreme Court to expel a House leader who orchestrated a Democratic quorum break to stall a vote on the maps.

“One thing we know is the Governor cares deeply about the quality of his Supreme Court appointments,” said former Chief Justice Tom Phillips, now of Baker Botts. “If they’ve been busy on other things, it’s not odd. This is not a unique circumstance.”

10 Cases This Week

As Abbott delays, the eight remaining justices will conduct normal business until an appointment is made. This week they’re scheduled to hear 10 cases.

In deciding a case, the vacancy will only present a problem if the justices are deadlocked at 4-4, a highly unusual outcome on the all-Republican court. Then, Abbott could send in a temporary justice to break the tie.

Though the vacancy poses a mathematical disadvantage to litigants in getting their case accepted for review—which requires votes from at least four justices—most of those decisions were already made in late August when the court was fully staffed.

The vacancy “does not present any meaningful operational issues,” said Boyd, whose final day was Sept 1.

The pick will be Abbott’s seventh on the nine-justice court, expanding his influence over legal disputes in the largest Republican state. By the end of the year, Abbott, himself a former Supreme Court justice, is expected to surpass 200 appointments across all levels of the judiciary—most by any Texas governor.

Although candidates from intermediary appeals courts are lining up, Abbott’s track record offers few hints about where he’ll land in the selection.

Three of his past choices to the high court had never served as a judge, including two who worked under him as general counsel, Jimmy Blacklock, now Chief Justice, and James Sullivan. Three others had once served as appeals court justices but moved on from those positions before their appointments.

“The choices have been outstanding,” said former Supreme Court Justice Paul Green of Alexander Dubose & Jefferson, “so you can’t really complain about them rushing to make a decision that turns out to be a bad one.”