Attend any talk by a judge which includes legal writing tips, and there's sure to be this one: keep it as short as is necessary to make your points. Justice Kennedy's remark that "I never read a brief I couldn't put down in the middle" and Chief Justice Roberts noting "I can’t recall ever being sorry to see a brief end," for example. Good advice. But what judges may not realize is that it is very often a two way street, and we consumers of judicial opinions also appreciate brevity. (With the exception of opinions in cases we win; in those circumstances, please do drone on Your Honors.)
Well, here's one that is somewhat lengthy at 49 pages, but is the exception to the rule and that we think more than a few readers will enjoy for their weekend reading: the concurring opinion in a case decided by the Texas Supreme Court yesterday.
You can read about the court's majority ruling here (via Tim Sandefur at PLF's Liberty Blog), in this case about whether Texas' licensing requirements for the profession of "commercial eyebrow threaders" survive a rational basis challenge under Texas' Due Course of Law provision, or are as ridiculous as they sound.
Justice Willett's concurring opinion joins the majority's conclusion that the Texas rational basis test isn't the same as the "aliens might have conceivably done it" federal rational basis test, but is really about whether there's a rational basis in the record that the regulation advances a legitimate government interest. So at least in Texas, they can't make stuff up and the reasons must be in the record, and not be irrational or work an irrational result. But what makes the concurring opinion an enjoyable read is the Justice's long discussion of why courts should not just sit by and rubber stamp anything the legislature labels "economic" regulation. We like this part, about eminent domain, also:
But “economic” and “noneconomic” rights indisputably overlap. As the U.S. Supreme Court has recognized, freedom of speech would be meaningless if government banned bloggers from owning computers. Economic freedom is indispensable to enjoying other freedoms—for example, buying a Facebook ad to boost your political campaign. A decade (and three days) ago in Kelo v. City of New London, the landmark takings case that prompted a massive national backlash, Justice Thomas’s dissent lamented the bias against economic rights this way: “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”
Kelo is indeed illustrative, as the rational-basis test applies in eminent-domain cases, too, notwithstanding the assurance in footnote four of Carolene Products that alleged violations of the Bill of Rights deserve heightened scrutiny. Even though the Fifth Amendment explicitly protects property, the U.S. Supreme Court has supplanted the Carolene Products bifurcation with rational-basis deference in takings cases. The Kelo Court stressed its “longstanding policy of deference to legislative judgments,” and its unwillingness to “second-guess” the city’s determination as to “what public needs justify the use of the takings power.” Justice O’Connor’s scathing dissent, her final opinion on the Court, forcefully accused her colleagues of shirking their constitutional duty.
I would not have Texas judges condone government’s dreamed-up justifications (or dream up post hoc justifications themselves) for interfering with citizens’ constitutional guarantees. As in other constitutional settings, we should be neutral arbiters, not bend-over-backwards advocates for the government. Texas judges weighing state constitutional challenges should scrutinize government’s actual justifications for a law—what policymakers really had in mind at the time, not something they dreamed up after litigation erupted. And judges should not be obliged to concoct speculative or far-fetched rationalizations to save the government’s case.
Opinion at 35-36 (footnotes omitted).
Check it out.