In the Nov. 6 general election, voters sent Texas Supreme Court Justice Nathan Hecht to the high court for the fifth time. Early in his upcoming sixth term, Hecht will replace the late Justice Joe Greenhill as the court’s longest-serving justice.
Texas Lawyer Senior Reporter John Council sat down with Hecht in his Austin chambers to talk about how the court has changed over the last 20 years, the effect tort reform and the court’s rulings have had on jurisprudence in Texas, and whether the court will ever be finished issuing decisions on what constitutes an adequate expert report in medical-malpractice cases.
Texas Lawyer: Judge Hecht, not many lawyers can remember a Texas Supreme Court without Nathan Hecht. Remind us what the composition of the court was like in 1989 when you first joined and how you differed from its incumbents?
Justice Nathan Hecht, Texas Supreme Court, Austin: Well, for one thing, we elect judges on partisan ballots. I’ve always thought there must be a better way to do that. But in 1988 when I was elected, there had never been a Republican elected to the Supreme Court since Reconstruction. And that year Tom Phillips and Gene Cook and I were all elected. And now there has not been a Democrat elected to the court in, I guess, since . But politics doesn’t have anything to do with it, and we all feel uncomfortable being associated with partisan politics, but we’ve got to run for office in Texas. So, that was different. And there were a number of former legislators on the court. Justice [Oscar] Mauzy had been a state senator for a long time, so had Justice [Jack] Hightower and Justice [Lloyd] Doggett. Justice [C.L.] Ray had been on the commissioner’s court and had been county judge out in East Texas for awhile. So, it was a little different appreciation of the legislative branch, I think, than a court without those people. . . .
TL: No doubt, you issued a lot of dissents in your early years on the court. Now you’re in the majority more often than not. What do you see as your role on this court: intellectual leader or maybe holder of the court’s institutional knowledge?
Hecht: I do get asked quite a bit how we’ve done things. It’s better not to reinvent the wheel. My father used to say that “It’s a wise man who learns from his mistakes, but it’s a wiser man yet who lets the snake bite the other fellow.” So, if we’ve tried it before and been snakebit, it’s better to know that and go a different route. So, there’s some institutional memory that I can provide. But still, whether you’ve been here for a short time or a long time and whatever your background is, you’re still one of nine. And, on any given day, decisions are hard, the outcomes are not clear and people are still struggling with issues. So, each of us tries to bring to those discussions what he or she can.
TL: Depending on the election cycle, campaign contributions can have a huge impact on Texas Supreme Court elections. Does it ever make you uncomfortable that both lawyers and clients who have cases pending before the court are allowed to contribute so heavily to justices and candidates for the high court?
Hecht: Yes. For the most part, all of us have always tried not to take contributions from parties with pending cases. But with a thousand cases pending on any given day, and that changing through an election cycle, it’s very hard to keep up with it. But I think we’ve all pretty much kept from doing that. With regards to lawyers, it’s just impossible, because a lawyer will file a petition in December of the election cycle, get denied in February, file another one in March — it’s just too fluid to be able to keep up with it. But contributions in general, I’ve never known a judge — certainly on this court — that felt comfortable about campaign contributions. But you’ve got two choices: You’re going to run for office and not tell people who you are and not take any contributions; or you can try to tell people who you are, and that takes money. And both sides have their drawbacks. We should change the system, and we work very hard to try to do that. But the people want more accountability, and they want to elect judges, and so that’s the way we do it.
TL: Tort reform has changed Texas laws significantly since you took the high court bench more than 20 years ago. Your court has been called on to review those tort reform laws numerous times. In your view, has the effort improved justice in Texas or simply hampered a plaintiff’s ability to receive just compensation?
Hecht: With respect to the tort reform efforts of the Legislature, I don’t really take a position. Those policy matters are up to them; they always have been. And during House Bill 4 efforts in 2003, the court encouraged the Legislature to leave implementation of policy to the court’s rule-making procedures. So we did try to say, “Set the policy any way you want, but please let the lawyers and judges who are actually going to have to use it have a say in the mechanics and the practicalities.” And they were amenable to that. Cooperation has continued since then, and I think that’s one of the really good things that’s happened in the last few years is the Legislature and the court do work together on that aspect. Now, again, they set policy. If they think it should be more this way or more that way, that’s certainly their call, and our job is simply to try and discern their intent when it’s in question and make sure it’s carried out. But we’re glad of the efforts to try and coordinate the rule-making with their policy-making.
TL: Speaking of tort reform and House Bill 4, the court has issued numerous opinions as to what constitutes an adequate expert report in a medical-malpractice case. Why does the court accept that issue for review over and over, it seems?
Hecht: There’s just been a — perhaps unexpected, I don’t know — a lot of issues about how this works. And these health-care liability claims are a heavy part of litigation; there are a number of them. And this is a threshold requirement, and it’s something that we need to straighten out. The courts of appeals have been in conflict over some of the issues, and, as we’ve expressed in our opinions, we think it’s important that the threshold step that the Legislature chose be enforced. But at some point we need to get on with the merits of the case. And it’s very concerning. And, again, we’ve expressed this in our opinions: It’s very concerning that there’s always a challenge to an expert report, that there’s always an appeal, that the appeal takes time and money and that this just — I don’t know if it really achieves the legislative purpose in trying to make these claims less expensive for the parties. So, one way to help that is to make the lines as bright as possible, and I think that’s a fair characterization of our decisions.
TL: Let’s talk about your judicial philosophy. You’ve made it clear in your opinions that the court should never allow new causes of action unless a statute allows it. But sometimes poorly written legislation makes such questions judgment calls for the court. Are you always going to err on the side of not opening up a new cause of action in such cases?
Hecht: There’s never an “always.” I think we’re going to be cautious about it. There’s a lot of criticism of some of the new causes of action of the ’80s. Most of that kind of worked itself out. There were bad faith causes of action recognized in the ’80s, and there was a lot of discussion about that. In much of that area, the Legislature has come along behind the court and taken what it wanted and discarded some others. So, I think it’s always a question. The common law does evolve; it doesn’t just evolve one way. And every time you have to look at it carefully.
TL: You’ve been a member of an all-Republican court for more than a decade. In your view, is justice any better or any different when one party controls the state’s highest civil court?
Hecht: I certainly don’t think it’s better, and whether it’s different or not, I haven’t seen that myself. When I came to the court in 1989, there were three Republicans and six Democrats. We disagreed across party lines in many cases. Justice Mauzy and Justice Ray made cause many times over efficiency in cases and trying to cut out wasteful practices because we thought that was better for the justice system. Not that my other colleagues didn’t, but I’m just saying there was no partisan divide on those things. I have not seen that change. But people do think differently from time to time, and they approach the law differently, and, sure, they have a different judicial philosophy and a different approach to the jurisprudence. But do you expect it to be one way or the other because a person was elected on a Republican label as opposed to a Democratic label? I think it’s hard to discern that.
TL: From time to time, the Republican Party has supported term limits for elected officials. What’s your view on that, given that you’ve won election so many times?
Hecht: Again, I really don’t have a view. When it’s raised in respects to the legislative branch, I’ve heard a lot of legislators say, “We should play by the rules, and if the rules don’t limit terms, that should be the way we all do it.” Is it a good idea or not? I don’t think the influx of new people is a bad thing, of course. But I think having some gray heads around can help matters, too. The only bad thing on our court, and I think the last decade proved this, is that a high rate of turnover makes the court very inefficient. It’s not because the new judges can’t do their work; it’s not because they are not qualified — of course they are. But it’s just that — if you could imagine joining a nine-person law firm for the first time, and the other eight people have been there for a while, and you’re expected to help with all of the firm’s work — it just takes some time. And that slowed us down. It put us way behind in the middle of the last decade, where we had seven new judges in four years, something like that. We’re just determined this go-round, with just a little bit of turnover we’re experiencing now, not to fall behind.
TL: Do you think we should seriously look at appointing judges in Texas?
Hecht: I do. I think we should seriously think of some other selection method than what we’ve got. There are a lot of elected judges in the United States. But there are also a lot of systems that have some sort of qualification screening, maybe recommendations to the governor. Most of our judges in Texas are still appointed to the bench the first time. It would be a change, but it’s not such a profound change that I think the people wouldn’t get used to it. But you know, we worked with [Lieutenant Gov.] Bob Bullock back in the ’90s. We got it through the Senate twice, never through the House, and there just has not been popular sentiment for change. And, in fact, the overwhelming sentiment is against change. And I think we have to respect the will of the people.
TL: When you finally leave the Texas Supreme Court, whenever that will be, what do you hope Nathan Hecht will be remembered for?
Hecht: I have been very proud of the work I’ve done the last several years to try to help access to justice in Texas. I think I’ve made some progress in showing that it’s not a partisan issue, that it’s not a liberal or conservative issue, that it’s about justice; it’s about the integrity of the rule of law. And I hope that sticks; I think it will. It’s a public issue; it’s a big one. It’s a legal issue, so I hope that people will think I made a difference there. And I’ve done a lot to try to improve court procedures in Texas. We’ve got some changes that will be coming out in a month or so. And I will hope people will look back and say: “They didn’t fix everything, but they made it better for a while.”