I first learned of Texas Supreme Court Justice Don Willett on Twitter—fittingly—in 2013, when he asked me for a copy of my then-Twitter header image of the U.S. Supreme Court justices holding Care Bears (except Justice Scalia, who is photoshopped holding broccoli). Since that time, I've had the pleasure of meeting @JusticeWillett, who was more than happy to indulge me with a selfie.
He has now indulged me with an interview, too.
Willett's flair for social media has earned him a write-up in the New York Times, an appearance on Fox News, the title of “The Tweeting Judge” by Twitchy, a spot on Law360’s “20 Attorneys Killing It On Twitter,” and the bipartisan legislative honor of being named the first official "Tweeter Laureate of Texas.”
@JusticeWillett’s social media presence makes him a unicorn in the judicial sphere. Few judges tweet, and even fewer are good at it. But Willett may be rarer in his jurisprudence, specifically, his commitment to judicial engagement: A Constitution-first approach that holds that when reviewing the validity of government actions, judges must judge.
Willett believes that judicial duty means taking the Constitution, its liberties, and its limits seriously—not putting a pro-government thumb on the scale. “Our Constitution exists to secure individual freedom, the essential condition of human flourishing,” Willett told me. “Liberty is not provided by government; liberty preexists government. It’s our natural birthright, not a gift from the sovereign. Our founders upended things and divided power to enshrine a promise, not a process.”
Willett’s recent concurring opinion in Patel v. Texas Department of Licensing and Regulation is an essential how-to manual in protecting individual liberty. In Patel, the Texas Supreme Court struck a requirement that commercial eyebrow-threaders complete 750 hours of coursework (none of which includes eyebrow threading) and pass two exams (neither of which tests eyebrow threading). The court ruled that in economic liberty cases, judges must actually weigh real evidence—not just accept the government’s purported good intentions at face value. Tested with real scrutiny, the licensing law didn’t have a chance and was struck down.
In his concurrence, Willett stated, “Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.” The case was decided under the Texas Constitution’s due course of law clause, not the U.S. Constitution’s due process clause. The latter is interpreted under the “rational basis” test—a rubber-stamp standard often replacing adjudication with abdication. Rational basis mandates judicial deference to government in all cases not involving a handful of rights the Court has elevated to “fundamental” status. As a result, judges applying rational basis regularly accept unsupported assertions from government, and even invent justifications if government’s lawyers aren’t creative enough to come up with their own. As Willett wrote in Patel, this approach makes limited government “entirely fictive” and “grants a nigh-irrebuttable presumption of constitutionality.”
In the eyebrow-threading case, the Texas Supreme Court adopted a stronger test—“Don’t Thread on Me”—for state constitutional claims. As Willett wrote, “Texans are... presumptively free, and government must justify its deprivations.” In other words, courts must put constitutionalism before majoritarianism and government whim. Judges must determine whether “government is seeking a constitutionally valid end using constitutionally permissible means”— a question focused on “real-world facts”—“without helping government invent after-the-fact rationalizations.”
Willett’s approaches to both judging and tweeting share a common purpose: to engage Americans and remove distance between them and their government.
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