In nearly every speech Ted Cruz delivers in his bid for an open U.S. Senate seat, the former Texas solicitor general repeatedly mentions the U.S. Supreme Court.
Whether he is recalling the time he argued that a state should not have to follow an order from an international body or the brief he wrote in defense of a Ten Commandments monument on public property, Cruz’s work before the nation’s highest court during five-plus years as Texas solicitor general has served as the cornerstone of a somewhat unorthodox campaign for Congress.
Cruz worked on so many high-profile cases because he and his former boss, Texas Attorney General Greg Abbott, set out to engage in politically charged issues.
“We ended up year after year arguing some of the biggest cases in the country,” Cruz said. “There was a degree of serendipity in that, but there was also a concerted effort to seek out and lead conservative fights.”
Cruz, who has never held elective office, has argued before the Supreme Court nine times, more than any practicing lawyer in Texas or any current member of Congress. Increasingly, arguing before the Supreme Court has become a specialized skill performed by few lawyers as those with previous experience before the justices are more likely to be tapped to argue before them again, said H.W. Perry, a University of Texas School of Law professor who has studied the court.
“Most lawyers will go their entire life without getting close to the Supreme Court,” he said. “It really is kind of a special art.”
Lt. Gov. David Dewhurst, Cruz’s opponent in the July 31 Republican Senate runoff, has dismissed Cruz’s background as inadequate training for the job of senator.
“There’s a difference between being a debater and a fighter,” Dewhurst said Tuesday at a debate in Dallas.
Yet Cruz has energized Tea Party groups in large part through his repeated review of Supreme Court cases in which he pushed back against the federal government or defended religious expression in the public square.
Cruz, a Harvard Law school graduate, was introduced to the court in 1996 as a clerk for Chief Justice William Rehnquist. Through a stint as a private lawyer and working in President George W. Bush’s administration, he gained a reputation as a first-rate appellate lawyer.
In 2002, Cruz got a “call from out of the blue” from a friend about the Texas solicitor general position.
Texas created its solicitor general’s office in 1999 at a time when several states were building similar posts out of a desire to attract lawyers more versed in appellate law. Cruz became the state’s third solicitor general.
Part of the job’s appeal for Cruz was incorporating Abbott’s vision for the office.
“He gave me the charge and said ‘I want to look across the country and if we can stand up and fight for conservative principles, go do it,’” Cruz recalled. “And that was an extraordinary mandate to have.”
Abbott, who has hinted at a possible run for governor in 2014, declined to comment.
Cruz rarely mentions his earliest appearances before the Supreme Court, which do not make for great campaign fodder. During his first trip there in 2003, he argued that Texas was free to back out of a legal settlement in which it had vowed to improve health care services for poor children. The justices ruled unanimously against Texas.
The next year, Cruz persuaded the court not to release Michael Haley, who had been sentenced to 14 years in prison for stealing a calculator from a Wal-Mart even though the maximum was two years under state law. Although Cruz conceded that prosecutors had erred, he argued that freeing Haley would set a precedent that could undermine the convictions of others who were unquestionably guilty.
Some of the justices made clear they found Cruz’s suggestion that Haley return to jail unacceptable.
“Is there some rule that you can't confess error in your state?” Justice Anthony Kennedy asked.
The justices sent the case back to a lower court, which Texas viewed as a victory. A state court resentenced Haley to “time served,” according to Eric Albritton, his lawyer.
Later cases have largely formed the bullet points of Cruz’s stump speech. He rarely lets a campaign appearance conclude without mentioning José Medellín, a Mexican citizen who was sentenced to death in the 1993 rape and murder of two teenage girls in Houston. In 2005, Bush directed state courts to review the cases of dozens of Mexicans on death row to comply with an order from the International Court of Justice.
Cruz argued that Texas was not legally bound to obey the international court or the president’s order.
“In over 200 years of our nation's history, I'm not aware of any other directive from the president directly to the state courts and state judges,” Cruz told the justices.
Cruz described the 6-3 ruling in favor of Texas as a watershed moment for the state’s rights movement. Medellín was executed in 2008.
“It was by far the biggest case of my tenure,” Cruz said.
Cruz and his supporters regularly cite two other high-profile cases he worked on though others handled arguments before the Supreme Court, an approach that has drawn accusations that he has taken too much credit.
For the state’s successful defense of a Ten Commandments monument on public property, Cruz delivered arguments in front of a lower court and served as second chair at the Supreme Court hearing, which Abbott led on.
Cruz also wrote an amicus brief to the court on behalf of all 50 states in defense of preserving “under God” in the Pledge of Allegiance.
“We defended the Ten Commandments, went to the U.S. Supreme Court and we won 5-4. We defended the Pledge of Allegiance, went to the Supreme Court and we won unanimously,” Cruz told the Montgomery County Eagle Forum in Willis this month.
Cruz’s last case as solicitor general to reach the Supreme Court has emerged as a campaign issue, as his defeat abruptly transformed from a loss to an embarrassment. Soon after the court ruled in Kennedy v. Louisiana in 2008 that the death penalty for raping a child was unconstitutional, a blogger pointed out that Congress allowed such a punishment for the same crime under military court-martial.
None of the briefs filed in the case mentioned it and neither did Cruz, who had argued in support of Louisiana on behalf of 10 states.
“Everyone involved in this case missed it,” Cruz said.
Dewhurst’s campaign has pointed to the case as proof that Cruz has oversold his record.
“Ted Cruz’s incompetent research led to the gutting of one of the toughest versions of Jessica’s Law in the nation,” Mark Miner, an adviser for Dewhurst, said last month.
Cruz said that the oversight didn’t affect the ruling as Louisiana raised the issue when it requested a rehearing, which was denied.
“I would have been thrilled if the Supreme Court had granted a rehearing and changed its outcome,” Cruz said.