The following op-ed was co-authored by R Street Governance Policy Fellow C. Jarrett Dieterle.

President Donald Trump’s nomination of Texas Supreme Court Justice Don Willett to the 5th U.S. Circuit Court of Appeals breaks new ground for at least two different kinds of legal “engagement”—in the world of social media, and with a judicial philosophy that some conservatives have rejected as excessively activist.

Justice Willett is a prolific tweeter, an unusual quality for a judge, with tweets largely focused on history, civics, Americana, and dad jokes. This unique talent has earned him many accolades, including being named the first official “Tweeter Laureate of Texas” by the state legislature.

It is notable that Trump would nominate such a public-facing judge. The legal community has become more open to its professionals using social media in recent years, with attorneys deploying hashtags like #AppellateTwitter to connect with fellow lawyers. Doing so allows them to swap ideas, strategies, and even legal memes. Likewise, more and more state-level judges, perhaps inspired by Willett, have started their own Twitter accounts.

So far, however, hardly any federal judges have followed suit. While it remains to be seen whether Willett will maintain his account once he joins the federal bench, it would be a good thing if he does. As Willett has explained, his goal is to “to humanize and demystify” the courts, which is badly needed at a time when many Americans know next to nothing about our court system.

Aside from his tweets, Willett’s nomination also is important for the legal philosophy he will bring to the circuit bench. In recent decades, a debate has raged within libertarian and conservative legal circles over the proper role of the judiciary. Traditionally, many conservatives espoused the virtues of “judicial deference,” a doctrine affiliated with Judge Robert Bork, that urges courts to exercise the utmost caution before overturning laws. Under this philosophy, the bias is often to defer to the popularly elected branches of government, rather than energetically probing the constitutionality of challenged laws.

On the other hand, libertarian legal scholars such as Randy Barnett have suggested an alternative approach called “judicial engagement,” which encourages courts to more aggressively evaluate laws and regulations to determine whether or not they violate the Constitution. Willett’s jurisprudence underscores his belief that judicial duty means taking the Constitution and its limits seriously—and not putting a pro-government thumb on the scale. He demonstrated this most clearly in the 2015 case Patel v. Texas Department of Licensing and Regulation, in which the Texas Supreme Court struck down a requirement that eyebrow threaders complete hundreds of hours of coursework and pass exams, all of which were unrelated to eyebrow threading.

In his concurring opinion, Willett derided overly deferential judges and suggested an alternative: “In my view, Texas judges should instead conduct a genuine search for truth—as they do routinely in countless other constitutional areas—asking ‘What is government actually up to?’” In other words, if legislatures or regulators enact a law or rule, they must articulate coherent and persuasive reasons for why it is necessary. It is the job of courts to ensure that such reasons actually make sense and are permissible uses of government power.

In Patel, Willett rejected the government’s argument that requiring eyebrow threaders to complete irrelevant coursework was somehow necessary to protect the public. Instead, he rightly intuited that the real motivation behind the rule was economic protectionism, since it acted as a barrier to entry that incumbent eyebrow threaders could use to prevent new competitors from joining the industry.

Willett exercises true independent judgement in cases that come before him, refusing to defer to the government when its arguments are unpersuasive and its exercises of power are unconstitutional. This is vitally important during an era in which the federal government—and particularly the executive branch—continues to increase in size and influence.

In times past, Willett’s legal philosophy and tweeting would have made him a judicial unicorn. But in a sign of the evolving times, they’ve now helped land him on the federal bench.

Image by Marben


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