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A Texas concurrence makes the Washington op-ed pages

By Don Cruse

First, Justice Willett’s concurring opinion in the Robinson case attracted attention from notable appellate geeks and other geeks more likely to read Wired for the opinion’s passing reference to Star Trek. ¹

Now, that same Robinson concurring opinion has gotten attention from still a third species of geek — the policy wonk.

In a syndicated op-ed piece about the constitutionality of healthcare reform, George Will writes about the proper role of judges in reviewing legislative acts. He singles out Justice Willett’s Robinson concurrence — which explained why Justice Willett agreed that a Texas tort-reform bill had overstepped the constitutional line — as “an opinion that provides pertinent clarity about the tension between judging and majoritarianism.”

Will’s article quotes extensively from that opinion; you may not need to read both. In the end, Will borrows a distinction suggested by Justice Willett “between an activist judge and an engaged judge.” and expresses his hope that “the [United States] Supreme Court justices are engaged when considering the insurance mandate.”

For more context about the Robinson case, links to all the opinions, briefs, and some related articles are collected on this DocketDB page.

1. I’m not sure I’ve ever seen an opinion attract as many different short blog posts as did this passing reference. But contrary to some of the more hyperbolic headlines, the opinion does not, of course, adopt Spock’s maxim as Texas law. Instead, it explains that the “Vulcan” notion of utilitarianism is “cabined by something contrarian and Texan.” But the loving care of footnote 21 reveals genuine affection for the Star Trek movies if not for the their legal system.

Full post as published by Supreme Court of Texas Blog on December 06, 2010 (boomark / email).