Earlier this year, presumptive Republican nominee Donald Trump issued a list of judges he would consider nominating to the Supreme Court. Among the justices was Duke alum and current Texas Supreme Court Justice Don Willett, Law School ’92, who recently returned to Duke for the Law School’s LLM program. The Chronicle’s Neelesh Moorthy spoke with Willett about his time at Duke, his time on the bench and his Twitter habits.
The Chronicle: What is the most interesting case you have heard on the Texas Supreme Court?
Don Willett: Probably one we decided last summer, called Patel. It was a case about, of all things, eyebrow threading. This was an occupational licensing case that posed fundamental questions about how our Constitution allocates governing power.
You had eyebrow threaders who were trying to pursue their occupational calling, and the state of Texas wanted them to be fulling licensed aestheticians, which in Texas requires massive amounts of training, classroom study, testing and the licensure regulations were fairly oppressive. The eyebrow threaders just wanted to thread eyebrows, and the aestheticians’ regime had nothing to do with eyebrow threading.
It was a case about this timeless struggle between personal freedom and government power. The eyebrow threaders brought a constitutional challenge claiming the licensing regime was an unconstitutional burden on their occupational freedom. A federal court would employ a very deferential test in the government’s favor, and if the govenrment can provide a reason, the court will uphold the regulation.
It was about far more than whether Mr. Patel could pluck unwanted hair with a strand of thread. This was a case fundamentally about the American dream, and the right to pursue happiness without curtsying to the government.
The court ultimately adopted a more rigorous test that requires the government to justify its burden with real-world evidence. We adopted a more pro-liberty test more inclined to occupational freedom.
TC: What do you tell students looking at the law now compared to when you were in law school at Duke? How was your time at Duke different to now?
DW: The legal marketplace has changed profoundly. My default advice to those who ask me if they should go to law school has changed from what it was even five years ago. The legal community has undergone seismic changes, and more and more the law resembles less of a profession and more of a business. There are enormous marketplace pressures on law firms.
My advice to people now is "do you, truly in your heart of hearts, yearn to be a lawyer?" and if the answer is "I don’t know" or "maybe" I urge them to seriously reconsider. When I went to law school 25 years ago, law school was a rational choice, even for those who weren’t sure about practicing law. You could go to law school for three years, it wasn’t that oppressively expensive, you would graduate and you would probably have a wide array of professional opportunities.
In this financial and legal marketplace, I see a lot of students who graduate from law school saddled with a soul-crushing amount of debt with fewer opportunities in the legal marketplace.
TC: How do you think your time at Duke shaped your career, especially having returned to the University just recently?
DW: Duke is a dynamite law school. I thrived and thoroughly enjoyed my time there, above and beyond basketball. My time there was actually the mountaintop. We went to the finals every year I was there, and won two back-to-back titles. It was the era of Christian Laettner, Grant Hill, Bobby Hurley and it was great to watch players whose jerseys now hang from the Cameron rafters.
I just went back and received my LLM in Judicial Studies and it was otherworldly to be back full-circle a quarter-century later. It dawned on me when I began my studies for the LLM in 2014, [my experiences] when I had started at Duke back in the summer of 1989. The hit song in the country back then, I think, was "Bust a Move" by Young MC. That was the summer of Tiananmen Square. The Berlin Wall fell, the Soviet Union imploded.
It was like I had stepped into a time machine, and I realized it was 25 years to the day that I was a JD student. It was surreal to be back full-circle with a backpack slung over my shoulder, trudging to class, sleep-deprived, trying not to get called on.
TC: How would you describe your judicial philosophy?
DW: I have a decidedly modest view of my role and the judiciary’s role in our constitutional architecture. The judiciary is emphatically a legal institution, not a political or cultural one. Judges must act judicially by adjudicating and not politically by legislating. We need to be impartial referees rather than ideological combatants or indulging personal agendas, either liberal or conservative.
TC: Is there a justice on the Supreme Court you most identify with?
DW: There are certainly members of the Court I appreciate for different attributes. I don’t have one role model who I identify with. I just try and approach things with analytical precision and to write clear opinions that provide bright-line guidance.
I learn from judges across the ideological spectrum. I, like many, have always enjoyed [now-deceased Justice Antonin Scalia’s] gusto and pyrotechnics, but I also admire [Justice Elena Kagan’s] conversational writing style. She is a crackerjack writer.
I consider the judiciary to be the most elegant branch of government, because it is the only branch that is expected to explain its decisions in a principled, methodical politics-free way. The Court must write opinions that provide guidance for future cases, and it has to have a step-by-step analysis. Even if someone disagrees with me, they should be able to understand how I got there.
TC: Is it harder in this day and age for the judiciary to be impartial? The Supreme Court now is obviously in a lot of partisan dispute.
DW: I’ve been a lawyer now for 24 years, but only three of that was in private law practice and the rest has all been for government at different levels. I’ve worked for a federal appellate judge, a large Texas law firm, a Texas attorney general, a Texas governor, a United States attorney and the president of the United States.
I think those varied experiences has bestowed on me one key virtue—I know judging, I know policymaking and I know the difference. The paramount quality people should want in a judge is fidelity to the rule of law. The rule of law is indispensable to a healthy, constitutional democracy. The rule of law is not simply what judges decided to do. Our country is "we the people" not "we the judges."
TC: You are well known for being more vocal than most justices, especially on Twitter. Why do you choose to do that?
DW: Running for office is one reason I’m so avid on social media. I’m in a state of 254 counties and 27 million people, and my name ID as an obscure justice hovers somewhere between slim and none. We inhabit an age of staggering civic illiteracy. Every year or two the Annenberg Center at the University of Pennsylvania will publish a check-up. The latest one showed that 36 percent of American adults can name all three branches of government, and 35 percent can’t name a single one.
As I tell my colleagues, it is political malpractice not to engage people smartly via social media. The judiciary, despite wielding enormous power, is mysterious to most Americans. People know more about their American Idol judges than their Supreme Court judges.
I use social media, mainly Twitter, to humanize and demystify the judiciary. I’m probably the most avid social media justice in America, which I liken to being the tallest munchkin in Oz. The House of Representatives in Texas sort of declared me the "tweeter laureate" of Texas, and I think people are amazed that a nerdy, fuddy-duddy judge can be authentic and engaging. Believe me, my geekery is on an uber-elite level, and it's rare to step away from the bench and demystify things.
TC: What inspired you to come to Duke in the first place and get a law degree?
DW: I’d never lived more than two hours away from home. I’d never eaten a bagel until I came to law school. I knew I was going to return to Texas and live and work and raise my family, but law school was really my last chance to live in a different part of the country with different people who saw the world differently than I did.
I could have gone to a range of schools, but I really thrived at Duke. We had a tight-knit class with a lot of camaraderie. Duke is simply so beautiful. My drive to campus was like a Lexus commercial, with leaves rustling as I curved around this beautiful canopy of trees. I wanted to expand my worldview and become better read and better rounded, and that’s why I came back for my LLM to scratch this insatiable itch for deeper and more varied knowledge.
I grew up in a double-wide trailer in a tiny farm town of 32 people, and was raised by a widowed mom who never finished high school and worked multiple jobs as waitress to support me. I never knew any lawyers, and never imagined serving as a judge on any court, much less the Texas Supreme Court.
My mom, who is about to turn 86 in November, embodies virtues like grit, tenacity and fortitude. All her sacrifices, I think, inspired in me a devotion for public service. I don’t remember a lightning-strike moment, but I think the idea of becoming a lawyer came when my father passed at age 40. He died without a will, which makes life very complicated for those left behind, and I saw the law’s power to impact lives.
I saw my mom, who never had a high school diploma, making monumental decisions that would shape our trajectory. I didn’t know any lawyers, but it was obvious to me they were positioned to exert a profound impact on society. I wanted to harness that for good.
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