Most active lawyers in Texas can’t even remember a time when a Democrat sat on the Texas Supreme Court.
Yet last month the Bar bid farewell to Ted Z. Robertson, a former Texas Supreme Court justice who served on the high court from 1982 until 1988—at a time when Democrats held nearly every seat on the court. Robertson, who was one of the most influential justices from that era, died at his Dallas home at age 96.
Robertson is credited among Texas appellate lawyers with leading the high court into the modern age of discretionary review. But his defeat at the ballot box 30 years ago signaled an end to Democrats’ control of the high court.
Born in San Antonio in 1921, Robertson’s family traced its roots back to the state’s earliest settlers. His great-great grandfather, Sterling Clack Robertson, fought at the Battle of San Jacinto, signed both the Texas Declaration of Independence and the Constitution of the Republican of Texas and served as a senator in the Congress of the Republic of Texas.
Robertson earned his law degree from St. Mary’s University after serving in the U.S. Coast Guard during World War II, surviving a Japanese torpedo attack that disabled his ship.
After law school, Robertson was in private practice in both San Antonio and Dallas until 1960 when he was hired to head the Dallas County District Attorney’s Office civil division. He was later appointed to a Dallas County probate court in 1965, moved to a Dallas County juvenile court in 1969, was appointed to the 95th District Court in 1975 and to the Dallas’s Fifth Court of Appeals later that same year.
And in 1982 Robertson was elected to the Texas Supreme Court where he would advocate for the high court’s eventual shift from its writ-of-error system of reviewing cases to its current discretionary review system in which the court chooses cases based on their importance to Texas jurisprudence.
“At that point there wasn’t discretionary review. We had to read every petition. And the justices had to read them and they had to address them in some way,” said James “Jamie” Parker, a San Antonio appellate lawyer who served as law clerk for Robertson from 1986 until 1987. “It was a long and important battle for the court to have what’s essentially a certiorari-type system.”
Robertson wrote a law review article in 1985 about why the writ-of-error system was an inefficient use of the court’s time. And the Texas Legislature heeded Robertson’s suggestions and saw fit to change the court’s case selection method by law in 1987.
George Tex Quesada, a Dallas attorney who also served a law clerk on the court in the mid-1980s, said Robertson served on a Texas Supreme Court that focused on affirming jury verdicts—something far different than the current court is known for.
“He was a very practical judge,” said Quesada, who would later practice law with Robertson in Dallas after he left the bench. “He didn’t appear to be agenda-driven and he had a heart for the working person.”
One of Robertson’s favorite stories was how came to be rescued from the U.S.S. Etamin, a Coast Guard support ship he was serving aboard when it was blown up by a Japanese torpedo in 1944, Quesada said.
“He said he got recruited to join the U.S. Coast Guard and he was told he’d probably spend the war in Corpus Christi. And he ends up getting torpedoed off the coast of New Guinea,” Quesada said.
Robertson and other sailors jumped from the disabled ship and were stranded at sea for days in a lifeboat as U.S. military battled the Japanese on the island. And there was a reason for their delayed rescue, Quesada said.
“He told me they waited out in the bay to see who was winning—they wanted to see who won the battle first,” Quesada said. “Now that’s practicality.”
In 1987, Robertson decided to run for the chief justice spot when John Hill retired. But that same year, Robertson was mentioned in a CBS News “60 Minutes” report called “Justice for Sale?” which focused on the influence that plaintiffs attorneys and wealthy litigants had on three of the Democratic justices on the court.
Robertson was later defeated in the general election by Tom Phillips, who was appointed to the court by Republican Gov. Bill Clements in 1988. Phillips featured the “60 Minutes” report heavily in campaign ads—one of the most expensive races in the court’s history—and beat Robertson soundly with 56 percent of the vote in the 1988 general election. That year, Phillips, along with Nathan Hecht and Eugene Cook, became the first Republicans since Reconstruction to be elected to the court.
“He was very gracious,” Phillips said of Robertson. “He called me the night of the election and told me he wanted to be known as ‘Tom Phillips’ No. 1 fan’ henceforth.”
Republicans were emboldened by the election and by 1996, they had taken all nine of its seats. Robertson, who had sat on every level of court in the state, said in a 1987 that he considered winning the chief justice spot the “golden ring” of the state judiciary and it was a shot he had to take. But during his tenure on the court, Robertson traveled to Austin during the week and then returned home on the weekends to Dallas to care for his ailing wife. She died after the 1988 campaign.
“When I was clerking his wife was very ill,” Parker said. “It would have been great if he would have been able to become the chief. But it was OK that he didn’t too.”