A few months into last year’s legislative session, Erin Zwiener, a Democratic state representative who represents a district just south of Austin, called her colleague, Jared Patterson, and told him that a bill he’d authored would have required school book vendors to rate each book for sexual content and references and to recall any books they rated as “explicit.”
The bill had broad support; more than half of the Republicans in the Texas House of Representatives signed it, as did one Democrat. But Zwiener publicly and privately warned Paterson that the scope of books his bill deemed “obscene” went far beyond what courts have found acceptable under the First Amendment. Paterson, who did not respond to requests for an interview, had a series of conversations with Zwiener that were less about the bill’s constitutionality than about which books Republicans thought should be allowed in schools. The bill passed with bipartisan support in the House, with 12 socially conservative Democrats joining all Republicans in support. It then passed the Senate.
In the end, Zwiener’s hunch was correct. Shortly after Gov. Greg Abbott signed the bill into law, booksellers sued. In August 2023, a federal judge announced he would issue a preliminary injunction blocking the law from going into effect. The state appealed the ruling to the U.S. Fifth Circuit Court of Appeals, which is dominated by Republican-appointed judges and tends to side with right-leaning litigants. But the court’s panel found that parts of the bill defined “indecent material” too broadly, violating the First Amendment rights of booksellers and publishers. They also found that the law would impose an undue financial burden on retailers. The bill was defeated again, more recently on July 16, when Attorney General Ken Paxton missed a deadline to appeal the ruling to the U.S. Supreme Court. As it stands, the Texas State Library and Archives Commission will create new standards for what materials school libraries can shelve, but it’s unlikely to remove much of the material Patterson opposed.
Zwiener says the whole affair illustrates a pattern he’s observed in recent Congresses: many of his colleagues, particularly Republicans, are less concerned with the constitutionality of the bills they draft than they have been in the past. Zwiener cites two reasons for this. “It’s because people are less aware of or less interested in legal standards,” he says. “Also, we live in a time when existing precedents can be torn apart, which I think highlights why Congress can be so bold as to introduce these kinds of bills.”
She was referring to recent decisions by the U.S. Supreme Court’s conservative majority that will overturn a half-century-old constitutional right to abortion in 2022 and end race considerations in college admissions in 2023. More recently, the Supreme Court overturned so-called Chevron deference, which established 40 years ago that courts should give federal agencies leeway to interpret the law. “We’re in a time in the United States where precedent doesn’t mean as much as it used to,” says Brian Owsley, an associate professor of law at the University of North Texas Dallas School of Law. “The U.S. Supreme Court has shown a strong willingness to overturn long-standing precedents, and the Fifth Circuit is thinking outside the box in ways that are basically expanding the scope of what precedents have historically gone before.”
Wanting to see how far they could push, the Texas Legislature passed a string of bills that have been struck down as unconstitutional by the courts or are pending on appeal. A federal court blocked a state law that would have allowed Texas police to arrest people suspected of illegally crossing the Texas-Mexico border, an area typically left to the U.S. Border Patrol; the case remains tangled in a legal battle. Meanwhile, a federal judge in the Southern District of Texas ruled that a bill banning certain drag shows in the state “unfairly infringes on the First Amendment and stifles free speech.” The law never took effect.
Not all laws that seek to strip away rights we take for granted ultimately fail. In 2021, Republicans helped pass a law that effectively bans abortion. In a clever way, the law sidestepped constitutional issues by giving private citizens, rather than government agencies or government officials, the power to bring civil lawsuits against those who assist in abortions and the right to $10,000 in damages. The law is controversial, but it remains in effect.
Texas lawmakers can pass more extreme laws with impunity because, even if a district court blocks their implementation, the state can appeal the decision to the Fifth Circuit. This right-leaning appeals court, which handles cases from Louisiana, Mississippi, and Texas, has been more aggressive than most in overturning precedents it finds inappropriate, from blocking access to the abortion drug mifepristone to barring the Biden administration from discussing coronavirus-related misinformation with social media companies. But there are limits to relying on the Fifth Circuit. Between the start of the Supreme Court’s term in 2020 and its end in 2022, 74 percent of Fifth Circuit decisions have been overturned. By comparison, the 11th Circuit, another conservative-leaning circuit, had a 36 percent overturn rate during the same period.
“I think lawmakers are finding they have real friends in the Fifth Circuit, people who are really willing to be what used to be called ‘ultra-activist judges,’ and who aren’t afraid to overturn precedent,” says Sanford Levinson, a professor of law and political science at the University of Texas at Austin. “District court judges are still pretty moderate, so lawmakers may not expect to win cases against them, but once they get to the Fifth Circuit, it’s party time.”
Even if the judge rules against them, lawmakers can often gain credibility with their base by blaming the courts (and in Paterson’s case, the courts and attorney general) for blocking the will of the voters. “From the lawmaker’s perspective, this law is symbolic, so even if it’s challenged in court, it’s important,” says Charles W. “Rocky” Rose, a law professor at the South Texas College of Law in Houston. Lawyers say that as states become more polarized and redistricted, boundary-pushing laws are becoming more common. “Right now, in a lot of Republican districts, the concern isn’t that they’re going to be too socially conservative for voters. The concern is that someone is going to come at you from the right and say you’re a Republican in name only, and you’re going to lose the primary.”
Republicans have also shown increased interest in legislation that runs counter to legal precedent. According to a January 2023 poll by the University of Houston, 71% of Texas adults and 91% of Republicans support “requiring publishers to evaluate the content of books they sell to Texas public schools.” According to the Texas Politics Project at the University of Texas at Austin, as of April 2023, 69% of Texas Republicans strongly support banning drag performances in public places where minors are present.
Zwiener hopes more lawmakers take their duties seriously and don’t treat the courts as handmaidens who clean up after them. “Every lawmaker takes an oath to uphold both the Texas Constitution and the U.S. Constitution,” Zwiener says. “So I think it’s their duty to at least try to understand what it means.”
Paterson, meanwhile, remained steadfast, hinting on social media that he was undeterred by the series of court decisions against his book-ratings bill. After lamenting Paxton’s decision not to fight the bill before the Supreme Court, the senator made clear his plans: “Next session, we will continue the fight,” he wrote.
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