In March, Texas Gov. Greg Abbott sat before the next generation of conservative legal warriors and shared with them the gospel of Texas.
The story began several decades earlier, when conservative lawyers like himself looked out over the nation’s legal landscape and saw “opinion after opinion after opinion that seemed to rewrite the Constitution,” Abbott told this gathering of law students put on by the Federalist Society.
The conservatives believed that the nation had veered away from its constitutional foundations, thus causing them to fear the erosion of their vision of America as a Christian nation. They observed that the federal courts were safeguarding abortion rights, prohibiting prayer in schools, imposing limitations on gun ownership, and granting the federal government the authority to curtail the freedoms of states, businesses, and individuals.
It had been overdue to bring it to a close.
Abbott explained that what sets America apart from all other countries is our Constitution and our unwavering commitment to the rule of law. However, he expressed concern that if things continued in the same direction, we would eventually transition to a system where individuals, rather than the law itself, would determine its interpretation and application.
Conservative lawyers have come to realize that the rule of law, often seen as democracy’s equalizer, independent from politics and overseen by impartial judges, actually works in a contrary manner.
The individual who influences the structure of the courts has the power to shape the law.
In a somewhat paradoxical manner, conservative lawyers sought refuge in the federal judiciary, despite its unelected, lifetime-appointed judges, in their quest for salvation. Texas, in this crusade, would serve as their symbolic Jerusalem.
In just a short period, the Texas Office of the Attorney General underwent a significant change, becoming the driving force behind a conservative legal revolution that spanned the entire nation. With three different leaders, including Abbott, at the helm, the office flooded federal courts with lawsuits funded by the state, which were fueled by a growing and evident right-wing activism. Abbott expressed his vision of Texas as a shining example for the rest of the United States, showcasing the true essence of the rule of law, attracting the most talented and accomplished conservative legal experts to Austin.
When Abbott addressed a captivated audience of law students in March, he had become a success story. Supporters of this movement, including former employees of the Texas attorney general’s office and like-minded individuals, now occupy key positions in the federal judiciary. As a result, they frequently preside over the ongoing lawsuits that Texas files against the federal government.
The current system has been established to readjust the balance of justice. It goes beyond the U.S. Supreme Court’s decision to overturn Roe v. Wade, as lower courts are also obstructing federal attempts to protect abortion rights. Previously disregarded legal theories, such as a complete overhaul of federal regulatory agencies or the dismantling of long-standing voting rights laws, are now gaining traction. Additionally, assertions of religious devotion have been validated as sufficient grounds to breach the separation between church and state.
The conservative legal machine established in Texas is now embarking on its true mission. Abbott attended that event with the purpose of recruiting individuals who are willing to join the fight for America’s soul and future. Additionally, he aimed to gather support for crafting the next chapter in the Texas gospel.
The Book of John
It’s hard to imagine today, as the Texas Office of the Attorney General constantly pours lighter fluid onto the culture war bonfires, but 25 years ago, it was a relatively quiet agency that mostly collected child support and defended the state in bureaucratic lawsuits. The office could be a political launching pad, but as for the work itself, “months and even years will go by without the AG making a big splash in the Texas political pond,” Texas Monthly wrote around that time.
The office was so quiet, pundits couldn’t understand why John Cornyn would give up his seat on the Texas Supreme Court to run for attorney general in 1998.
In the San Antonio Express-News, political columnist Rick Casey questioned the motives behind Cornyn’s decision to accept a $17,000 decrease in salary to $92,000 per year and pursue a position that is perceived as less ambitious.
However, during the late 1990s, attorneys general nationwide were discreetly asserting their authority and collaborating across state boundaries to address consumer protection and environmental concerns.
Paul Nolette, a political scientist at Marquette University who specializes in studying state attorneys general, expressed that there used to be a sense of pride in being able to claim, “While Congress may be dysfunctional and divided, on the attorney general level, we can effectively collaborate across party lines and achieve tangible results.”
The high-water mark came when states sued Big Tobacco for public health costs associated with smoking. In 1998, Texas Attorney General Dan Morales brought home $17.6 billion, then the largest settlement of a single case in U.S. history, and helped set the stage for a 46-state master settlement agreement.
Nolette stated that the office underwent a fundamental transformation at that specific moment. It became evident that this office had the potential to play a significant role not only within our state but also in national politics. It was during this realization that we began to witness a noticeable improvement and advancement.
Morales, a Democratic darling, seemed a shoo-in for reelection, making Cornyn’s bid even more improbable. But then Morales dropped out to spend more time with his family; he was later convicted of fraud for trying to skim off the tobacco settlement’s legal fees.
After the election left a void in the political landscape, Cornyn achieved a significant victory by securing the attorney general’s position for the Republican party, marking their first triumph in this role since the Reconstruction era.
Although Cornyn presented himself as a moderate during his campaign and reportedly managed his office in a similar manner, his election did not bring about immediate ideological shifts. However, the lasting effects of his tenure continue to impact Texas.
“We should never forget that … John Cornyn and the men and women that swept into office with him in those years are the reason that conservative government in Texas is … a model to the rest of the country,” Houston attorney Charles Eskridge, now a federal judge, told a Federalist Society gathering in 2017.
Cornyn’s initial action was the establishment of the Office of the Solicitor General, a highly skilled and exclusive team of attorneys responsible for managing state and federal appeals, including those brought before the U.S. Supreme Court.
Prior to that time, it was common for the same staff attorney to handle a case from trial to appeals, a practice often seen in state attorney general offices. However, state offices were not as advanced as the federal government or private practice in establishing specialized appellate teams. This observation was made by Supreme Court Chief Justice Warren Burger in 1983.
“The Office of the Solicitor General of the United States and leading members of the Supreme Court Bar consistently rank highest in terms of advocacy,” Burger said at a conference on Supreme Court advocacy. “Unfortunately, the representatives of state and local governments consistently rank far below.”
During that period, a limited number of states had established a specific appellate office. However, by the early 2000s, nearly half of the states had implemented such offices. Texas’ Office of the Solicitor General, which was inspired by the federal counterpart, was established to ensure a unified and cohesive representation of the state, as stated by Cornyn during that time.
Cornyn refused to grant an interview and chose not to address the list of questions provided for this article.
Cornyn chose Greg Coleman, an esteemed appellate attorney known for his intelligence and principles, to lead the office.
Amy Warr, an attorney with Alexander Dubose Jefferson who previously worked at the solicitor general’s office in the early 2000s, clarified, “I don’t mean to refer to conservative principles or anything of that nature. When I say he was principled, I mean it in the traditional sense, emphasizing his ethical values.”
Coleman had clerked for Supreme Court Justice Clarence Thomas and Reagan-appointed 5th Circuit Judge Edith Jones. Later, as a private attorney, Coleman challenged aspects of the Voting Rights Act before Congress and in a successful Supreme Court case, stances U.S. Sen. Ted Cruz has said cost Coleman a judicial appointment under President George W. Bush.
But at its inception, the Texas Office of the Solicitor General wasn’t seen as an ideological post. Coleman, who died in 2010, hired young, smart attorneys from across the political spectrum, former employees say.
Convincing aspiring talents to reject or leave behind the lucrative salaries and perks of prestigious law firms to pursue government positions starting at $55,000 a year might have seemed like a daunting task. However, the Office of the Solicitor General presented a rare opportunity that young associates seldom encountered in the private sector: hands-on courtroom experience.
Warr expressed his excitement about his dream job, where he had the privilege of representing clients exclusively in the Texas Supreme Court, the 5th Circuit, and even the U.S. Supreme Court as a seasoned lawyer of five years.
During that period, numerous states were in the process of establishing appellate teams; however, Texas distinguished itself as an exceptionally alluring choice for ambitious lawyers. With its expansive size, location on the border, and implementation of the death penalty, Texas presented a multitude of cases that made their way through the higher courts.
Much of the attorney general’s work was — and still is — apolitical, the usual bureaucratic back and forth that keeps a state moving. Back then, even the high-profile cases weren’t particularly partisan. Texas teamed up with the Clinton Department of Justice on a 6th Amendment right-to-counsel case, which Coleman argued and won, 5-4, at the Supreme Court.
However, as the Texas Legislature, which was becoming more Republican, started leaning towards a more conservative stance, the office gradually adopted some of these ideologies. In 1999, the Center for Reproductive Rights filed a lawsuit against Texas regarding a law aimed at restricting abortion access, which mandated that clinics performing over 300 abortions annually must register with the state.
Kyle Duncan, a promising talent hailing from Louisiana, represented Texas in the 5th Circuit where the case was brought. Unfortunately, he was unable to secure a victory as the court ruled the Texas law to be unclear and unenforceable.
The conservative battle flag was cautiously unfurled by the Office of the Attorney General as they commenced their actions. In 1995, the Santa Fe Independent School District, located near Galveston, faced a lawsuit from the American Civil Liberties Union. The lawsuit targeted the district’s tradition of conducting prayers over the loudspeaker before football games.
Initially, the Texas Attorney General’s office, led by Cornyn, simply filed a brief supporting the district. But when the case went before the U.S. Supreme Court, Cornyn stepped in to defend the district personally, alongside Jay Sekulow, chief counsel for the conservative American Center for Law and Justice. (Sekulow is best known today for defending President Donald Trump in his impeachment trials.)
The school district, and Cornyn, lost, 6-3. In Texas, the ruling sparked outrage beyond Jesus and football.
“We’ve had activist Supreme Court justices come along in the past forty years, and rather than interpret the Constitution in a strict sense, they’re rewriting history,” John Couch, then a member of the Santa Fe ISD school board, told Texas Monthly at the time.
Cornyn was also deeply affected by the case. Several years later, during his tenure as a member of the Senate Judiciary Committee, he revisited the case when evaluating Samuel Alito’s nomination to the Supreme Court. The two individuals engaged in a meaningful conversation about it.
“He did commiserate with me a little bit,” Cornyn told The New York Times at the time. “I hope that he will be able to give the United States Supreme Court’s ruling some coherence, because frankly they are way out of step with what the founding fathers intended.”
The Book of Greg
Once Cornyn concluded his tenure as attorney general, the Republican makeover in Texas had reached its culmination. By 2002, the Republicans held sway over the Legislature and all statewide positions. Following a closely contested election that had to be settled in the Supreme Court, a Texas Republican even occupied the White House.
Ted Cruz, a young lawyer from Texas, was portrayed as an ancillary character in the legal drama that unfolded during George W. Bush’s disputed win in Florida, which ultimately secured his place in the Oval Office. Cruz had been dispatched to Florida with the intention of defending Bush’s victory. However, despite his anticipation of a prominent position in the Bush administration, Cruz’s behavior, as he later confessed, had offended several individuals, earning him a minor role in a government agency instead.
In his memoir, “A Time for Truth,” Cruz expressed his strong desire to become an influential figure in the Bush administration, holding a senior position like many of his campaign colleagues. However, he experienced great disappointment when it became evident that this aspiration would not come to fruition. The realization was deeply disheartening for him.
Unable to advance within the Republican establishment, Cruz redirected his focus towards his home state, where a burgeoning, assertive brand of conservatism was gaining momentum, particularly within the Office of the Attorney General.
Abbott, who succeeded Cornyn in 2002 after serving on the Texas Supreme Court, took a different approach to his campaign and tenure. Unlike his predecessor, he did not present himself as a moderate and had no intentions of governing as one.
Abbott assembled a team of young conservative lawyers charged with “scouring the national legal landscape and positioning Texas at the vanguard of conservative legal dynamism,” Don Willett, who served as deputy assistant attorney general before becoming a Texas Supreme Court justice, told the Texas Observer in 2016.
According to Barry McBee, Abbott’s first assistant attorney general, Abbott’s agenda encompassed a comprehensive form of conservatism. It differed from the mainstream Republicanism of the Bush White House as it embraced a disruptive legal philosophy. This philosophy aimed to address conservative social issues by adhering to a constitutional originalism framework.
Constitutional originalism asserts that judges should base their interpretations of the law on the text of the nation’s founding documents, as well as its public understanding during the time of their drafting. This approach prioritizes the original intent over legislative history or contemporary values when addressing crucial matters of law in the present era.
Conservatives argued that this was the sole method to rectify the imbalance of power in America. The executive branch had gained excessive influence, overshadowing the legislative branch. Additionally, the judiciary held authority over both branches, and all three had encroached upon the rights granted to the states.
Cruz, who claims to have committed the Constitution to memory during his childhood and played a pivotal role in the inception of the anti-establishment Tea Party movement, aspired to be part of the revolution. Consequently, he was promptly appointed as solicitor general.
Abbott, who did not respond to a request for comment, told The New Yorker that Cruz came with “batteries included.”
Abbott expressed his desire for Ted to assume a leadership position in the United States and effectively communicate a vision of strict construction. He further noted that Ted was highly enthusiastic and prepared to take on this role.
Cruz held a similar admiration for Abbott, as he expressed in his memoir, acknowledging Abbott’s ability to bring a judicious approach to a role that often succumbs to excessive politicization in numerous states. However, during Abbott’s tenure, the Texas Office of the Attorney General experienced an unprecedented level of politicization.
“Something sort of snapped when Greg Abbott became attorney general,” said Chad Dunn, a prominent voting rights attorney who has served as legal counsel for the Texas Democratic Party. “The office started weighing in more heavily on voter suppression, and all sorts of issues that [the] office hadn’t engaged in before.”
The key to this transformation was Cruz, who revolutionized the Texas Office of the Solicitor General. During Coleman’s tenure, the office filed just a handful of amicus briefs, court filings in which parties not involved in a case can share additional information, expertise or opinions with the court.
Cruz and his team went all out to accelerate the submission of these friend-of-the-court filings, guaranteeing that Texas had a significant say in cases related to abortion laws in New Hampshire, voter laws in Indiana, and gun laws in Washington state, along with numerous other cases.
Abbott’s “mandate to me was, ‘Look across the country. If there are conservative principles we can fight and defend, if we can make a difference defending the Constitution and the Bill of Rights, go do it,’” Cruz said at a 2019 Federalist Society event honoring Coleman. “What an amazing job description.”
There was no response from Cruz when asked for comment regarding this story.
During this period, New York, Massachusetts, California, and Washington state increased their involvement in legal proceedings. However, Texas emerged as the frontrunner in advocating for conservative viewpoints on immigration, the environment, and various other issues.
McBee stated that there was a significant increase in both our level of focus and aggressiveness. He acknowledged Cruz’s extensive knowledge about appealing cases and skill in presenting them before the court.
According to McBee, Cruz displayed remarkable efficiency in persuading the U.S. Supreme Court to consider Texas’ cases. He skillfully presented arguments on nine occasions before the highest court, not limited to Texas alone. Additionally, when Louisiana expressed interest in extending the death penalty to encompass instances of child rape, Cruz played a significant role in bringing that case before the Supreme Court as well.
Abbott also argued a case before the Supreme Court during this period, defending a statue of the Ten Commandments on the grounds of the state Capitol. This time, the court sided with Texas, 5-4, allowing the statue to stand.
Former employees say that the office’s obvious partisan agenda drove away certain individuals, resulting in a considerable amount of staff turnover once Abbott and Cruz’s objectives became evident. However, finding suitable replacements for these employees was not a challenging task.
According to McBee, Abbott and Cruz had a reputation for attracting talented and youthful appellate lawyers. This reputation started gaining more attention and attracting a larger pool of individuals who desired to work in that field. It provided an excellent opportunity for gaining valuable experience and adding an impressive credential to one’s resume.
Cruz’s involvement in the Federalist Society, which was initially established as a nonpartisan law school debate club, coincided with its transformation into a dominant conservative legal entity. This organization has championed the originalist arguments that have gained popularity in Texas.
According to Cassandra Burke Robertson, a law professor at Case Western Reserve University who previously worked at the Office of the Solicitor General under Cruz, the involvement of law students associated with FedSoc led to a growing interest in applying for positions at the office, resulting in a close-knit environment. Robertson further explains that many individuals who joined the office later were more aware of their political alignment and expressed a strong desire to work for the OSG.
After serving in office for five years, Cruz made the decision to depart for private practice. Upon discussing with Cruz, Abbott advised him to search for a successor who possessed superior skills as an appellate attorney. In response, Cruz approached his close friend and fellow Federalist Society enthusiast, James Ho, to take on the role.
Ho, a Taiwanese immigrant, swiftly ascended as a prominent conservative figure with an outstanding professional background. His journey began with learning English through the popular show “Sesame Street,” which eventually paved his way to Stanford University and the University of Chicago for his undergraduate and law degrees respectively. Ho’s accomplishments continued as he clerked for Supreme Court Justice Thomas, served as counsel to Cornyn on the Senate Judiciary Committee, and contributed his expertise to the Office of Legal Counsel, renowned as the intellectual hub of the Department of Justice.
Ho’s trajectory towards legal prominence was once likely to involve Washington, a federal prosecutor’s office, or academia. However, due to the influence of Cornyn, Cruz, and Abbott, that trajectory now led directly through the state of Texas.
Within a span of less than ten years, the Texas Office of the Attorney General had positioned itself as a key player in the conservative legal revolution. It successfully drew in a highly skilled team of attorneys who were dedicated to advancing these causes by means of the judicial system.
A suitable opponent was all they lacked, until the 2008 presidential election arrived.
Disclosure: Texas Monthly and The New York Times have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Join us for conversations that matter with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23.