Part 1: In 1998, a legal revolution was quietly born in Texas. It would pull America’s courts rightward.
With his election as Texas attorney general, U.S. Sen. John Cornyn planted the seeds of conservatism. Gov. Greg Abbott used his tenure to cultivate them into an aggressive strain of right-wing activism aimed at driving the nation’s courts and laws to the right.
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 nation had strayed from its constitutional roots, as divined by these conservatives, and their vision of America as a Christian nation was slipping away: Federal courts were protecting abortion rights, keeping prayer out of schools, restricting gun ownership and letting the federal government rein in the liberties of states, businesses and individuals.
It was long past time to put an end to it.
“A principle that causes America to stand apart from all other countries is our Constitution and our adamant insistence on the rule of law,” Abbott explained. But the way things were going back then, “we would soon become the rule of men, whoever was interpreting and applying the law.”
The rule of law is often cast as democracy’s equalizer, a nonpartisan social contract insulated from politics and arbitrated by impartial judges. But as these conservative lawyers realized, quite the opposite is true.
Whoever shapes the courts shapes the law.
So it was to the federal judiciary, paradoxically ripe for ideological influence with its unelected, lifetime appointees, that those conservative lawyers turned for salvation. In that crusade, Texas would become their Jerusalem.
In less than a generation, the Texas Office of the Attorney General transformed into the beating heart of a nationwide conservative legal revolution. Under three occupants, including Abbott, the office barraged the federal courts with state-funded lawsuits born of increasingly overt right-wing activism. The best and brightest of the conservative legal elite came to Austin to help Texas become “the standard bearer for the United States in showing what the rule of law is,” Abbott said.
By the time Abbott spoke to this auditorium of rapt law students in March, his was a success story. Disciples of this movement — alumni of the Texas attorney general’s office and their ideological allies — now fill the federal bench, often deciding the lawsuits Texas continues to bring against the federal government.
The system is now in place to recalibrate the scales of justice. It’s not just the U.S. Supreme Court overturning Roe v. Wade, but lower courts blocking federal efforts to shore up abortion access. Legal theories once dismissed as fringe — a wholesale redesign of federal regulatory agencies, undoing once sacrosanct voting rights laws — have taken hold. And claims of religious piety have been affirmed as grounds enough to pierce the veil between church and state.
The true work of this conservative legal machine built in Texas is just beginning. Abbott was there that night “on a recruiting mission,” seeking acolytes ready to take up the “battle for the soul, for the future of America.” And to help write the next book in the gospel of Texas.
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 mostlycollected 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.
“Why would Cornyn take a $17,000 pay cut to $92,000 a year and seek an office perceived as lower on the ambition ladder?” political columnist Rick Casey wrote in the San Antonio Express-News.
But in the late 1990s, attorneys general across the country were quietly stepping into their power, working across state lines on consumer protection and environmental issues.
“There was a point of pride to say, ‘Congress is really dysfunctional and polarized but here on the AG level, we really can work across party lines and actually accomplish something,’” said Paul Nolette, a political scientist at Marquette University who studies state attorneys general.
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.
“That moment … fundamentally changed the office,” Nolette said. “There was a realization [that] this office could be really important beyond our own state, in national politics, and that's when we started seeing a step up.”
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.
In the ensuing electoral vacuum, Cornyn won the attorney general’s office for Republicans for the first time since Reconstruction.
Cornyn had campaigned as a moderate, and former employees say he ran the office as one. His election didn’t trigger immediate ideological earthquakes, but its aftershocks rattle Texas to this day.
“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.
One of Cornyn’s first acts was creating the Office of the Solicitor General, a specialized, elite unit of lawyers to handle state and federal appeals, all the way up to the U.S. Supreme Court.
Until then, the same staff attorney would often handle a case from trial through appeals, as was common among state attorney general offices. States lagged the federal government and private practice in developing specialized appellate teams, a trend Supreme Court Chief Justice Warren Burger noted 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.”
At that time, only a few states had a dedicated appellate office. By the early 2000s, almost half of states had created one. Texas’ Office of the Solicitor General, modeled on the federal version, ensured the state “speaks with one voice and one work product,” Cornyn said at the time.
Cornyn declined an interview request and did not respond to a list of questions for this story.
To run the office, Cornyn hired Greg Coleman, an appellate attorney with a reputation as a smart, principled jurist.
“I’m not talking about conservative principles or anything like that,” said Amy Warr, an attorney with Alexander Dubose Jefferson who worked at the solicitor general’s office in the early 2000s. “He was principled in the classic sense of the word, ethical.”
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 Cruzhas 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.
It should have been a tough sell getting rising stars to turn down, or step away from, the big salaries and expense accounts of white-shoe law firms to take government jobs starting at $55,000 a year. But the Office of the Solicitor General offered something young associates rarely got in private practice: courtroom experience.
“As a five-year lawyer, I had pretty much an exclusive docket in the Texas Supreme Court, the 5th Circuit and the U.S. Supreme Court,” Warr said. “I mean, that’s a dream job.”
While many states were building appellate teams at that time, Texas stood out as an especially appealing destination for ambitious lawyers. It’s a big state, a border state and a death penalty state, which means lots of cases passing 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.
But as the increasingly Republican Texas Legislature began dipping its toes into more hard-line conservatism, the office began to absorb some of the runoff. In 1999, the Center for Reproductive Rights sued Texas over an anti-abortion law requiring clinics to register with the state if they performed more than 300 abortions a year.
The case went to the 5th Circuit, where Texas was represented by Kyle Duncan, a rising star from Louisiana, who had clerked at the federal appeals court. He lost, the court finding the Texas law vague and unenforceable.
And the Office of the Attorney General itself began cautiously unfurling the conservative battle flag. In 1995, the American Civil Liberties Union brought a lawsuit against the Santa Fe Independent School District, near Galveston, over its practice of praying 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.
The case stuck with Cornyn, too. A few years later, when he was considering Samuel Alito’s nomination to the Supreme Court as a member of the Senate Judiciary Committee, this was the case the two men discussed.
“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
By the time Cornyn left for the U.S. Senate after one term as attorney general, the Republican transformation in Texas was complete. By 2002, Republicans controlled the Legislature and all statewide offices and, after a squeaker of an election, litigated up to the Supreme Court, there was even a Texas Republican in the White House.
One of the ancillary characters in that legal drama was Ted Cruz, a young Texas lawyer sent to Florida to defend George W. Bush’s disputed win in the state that edged him into the Oval Office. Cruz expected to be rewarded with a prominent post in the Bush administration, but the “twenty-eight-year-old, cocky kid” had “stepped on more than a few toes,” Cruz later wrote, and he was shunted into a minor agency role.
“I desperately wanted to be a real leader in the Bush administration — to have a senior post like so many of my campaign colleagues,” Cruz wrote in his memoir, “A Time for Truth.” “When that didn’t happen, and it became clear it wasn’t going to happen, it was a crushing blow.”
Denied a chance to climb the ladder within the Republican establishment, Cruz looked to his home state, where a more aggressive streak of conservatism was starting to take hold — running straight through the Office of the Attorney General.
Elected to replace Cornyn in 2002, Abbott also came to the office from the Texas Supreme Court. But unlike his predecessor, he didn’t campaign as a moderate — and he didn’t intend to serve 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.
Abbott’s agenda was “conservatism, writ large,” said Barry McBee, Abbott’s first assistant attorney general. This wasn’t the Bush White House’s mainstream Republicanism; it was a more disruptive legal philosophy advocating for conservative social issues through a constitutional originalism framework.
Constitutional originalism argues that, rather than legislative history or modern values, judges should rely solely on the text of the nation’s founding documents, and how it was publicly understood at the time of their writing, to answer essential questions about applying the law to modern life.
This was the only way, conservatives argued, to realign America’s balance of power — which had become badly distorted — with the executive outweighing the legislative branch, the judiciary lording over both and all three seizing rights guaranteed to the states.
Cruz, who says he memorized the Constitution as a child and would eventually help launch the anti-establishment Tea Party movement, wanted to join the revolution. He was quickly hired as solicitor general.
Abbott, who did not respond to a request for comment, told The New Yorker that Cruz came with “batteries included.”
“We wanted Ted to take a leadership role in the United States in articulating a vision of strict construction,” Abbott said. “Ted was supercharged and ready to go.”
Cruz similarly admired Abbott, who he said in his memoir “brought the attitude of a skilled jurist to an office that in far too many states is overly politicized.” But under Abbott, the Texas Office of the Attorney General would become more politicized than ever.
“Something sort of snapped when Greg Abbott became attorney general,” said Chad Dunn, a prominent voting rights attorney who has served aslegal 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’stenure, 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 staff kicked these friend-of-the-court filings into overdrive, ensuring Texas’ voice was heard on cases involving New Hampshire’s abortion laws, Indiana’s voter law and Washington state’s gun laws, among dozens of others.
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.”
Cruz did not respond to a request for comment for this story.
Several other states became more active in litigation during this period, including New York, Massachusetts, California and Washington state, but Texas took the lead on the right, staking out the red-state position on immigration, the environment and everything in between.
“We moved into hyperdrive in terms of the focus and the aggressiveness,” McBee said. “[Cruz] knew a great deal about what cases would be attractive and how to frame those cases as they came to the court.”
Cruz was “incredibly effective,” McBee said, at getting the U.S. Supreme Court to take up Texas’ cases. He argued nine times before the high court, and not just for Texas. When Louisiana wanted to expand the death penalty to include cases of child rape, Cruz helped take that case to the Supreme Court, too.
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.
The office’s more overt partisan agenda alienated some, and there was a fair amount of turnover once Abbott and Cruz’s mission became clear, former employees say. But it wasn’t hard to replace them.
Abbott and Cruz were known for recruiting “really good, bright, young appellate lawyers,” McBee said. “The reputation began to draw more attention, more people who wanted to come work in that venue. … Great experience plus a great credential on one’s resume.”
At the time, Cruz was involved in the growing Federalist Society, originally founded as a nonpartisan law school debate club. Over the years, it has emerged as a powerful conservative legal force, advocating for the same originalist arguments that found a foothold in Texas.
“Law students who were involved in FedSoc heard about the office [and] wanted to apply, so it became more and more tightly woven,” said Cassandra Burke Robertson, a law professor at Case Western Reserve University who worked at the Office of the Solicitor General under Cruz. “Many people who entered after [Cruz] were much more cognizant of wanting to work for OSG because they were politically aligned.”
Five years after he took office, Cruz decided to leave for private practice. According to Cruz, Abbott told him to find a successor who was a better appellate attorney than he was, so he turned to a friend and fellow Federalist Society stalwart, James Ho.
Ho was a rising conservative superstar with an impeccable resume. A Taiwanese immigrant who learned English by watching “Sesame Street,” Ho went to Stanford University for college and the University of Chicago for law school. He clerked for Supreme Court Justice Thomas, served as counsel to Cornyn on the Senate Judiciary Committee and worked for the Office of Legal Counsel, known as the judicial “nerd shop” that serves as general counsel for the Department of Justice.
Ho was on a very specific path to legal prominence. A decade before, that path might have cut through Washington or a federal prosecutor’s office or academia. But now, thanks to Cornyn, Cruz and Abbott, it ran straight through the heart of Texas.
In less than a decade, the Texas Office of the Attorney General had situated itself at the center of the conservative legal revolution and attracted an all-star team of attorneys who wanted to help push these causes through the courts.
All they needed now was a proper adversary. And then came the 2008 presidential election.
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