Wallace Jefferson, former Chief Justice of the Texas Supreme Court and newly installed President of the American Law Institute (ALI), joins Jody Sanders and Todd Smith for a wide-ranging conversation on appellate practice, judicial leadership, and legacy. Chief Justice Jefferson, a partner at Alexander Dubose & Jefferson LLP, discusses ALI's mission to modernize the law, the U.S. Supreme Court argument he made just eight years out of law school, and his discovery that an ancestor, Shedrick Willis, shod Sam Houston's horse while enslaved and served on the Waco City Council after gaining his freedom. "ALI," he says, "is a good model for how Americans can and should be talking to each other." Tune in for Jefferson's insights on cameras in courtrooms and the challenge facing ALI as artificial intelligence outpaces deliberate legal reform.

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Welcome to the Texas

Appellate Law Podcast,

the show that takes you inside the

Texas and federal appellate systems.

Through conversations with judges, court

staff, top trial and appellate lawyers,

academics, and innovators,

we provide practical insights to help

you become a more effective advocate.

Whether you're handling

appeals or preparing for trial,

you'll discover strategies to sharpen

your arguments, innovate your practice,

and stay ahead of the latest

developments. And now here are your hosts,

Todd Smith and Jody Sanders,

produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Jody Sanders.

And I'm Todd Smith.

And our guests today,

we are extremely honored we have former

Texas Supreme Court Chief Justice

Wallace Jefferson. Chief

Justice, thanks for joining us.

Thanks for having me.

I'm excited about it.

Right before we started, Todd and

I were kind of chatting with you.

I think you're now our

third chief to be on here,

but we're excited you've been on our

list since we started to be one of our

guests, so we're glad six years

in we finally can get you on.

I think the majority of our listeners

know who you are, but I don't know,

maybe they don't know about your

background, anything like that.

So maybe just kind of give us your

background and your path to the bench.

Just starting from my family,

my father was in the military,

United States Air Force. He

and my mother had six kids.

None of us were born in Texas because he

was traveling all over the country from

base to base.

So we were born in

Massachusetts and Nebraska and

California.

I was born in Washington State and

Tacoma along with one of my sisters and

another sister was born in Guam.

So we moved to San Antonio for his last

base assignment that was Kelly Air Force

Base before it was shut down with the

Base Realignment Act and that was back in

1967. So those are really where my

memories started. I have a few from Guam,

but grew up in San Antonio,

went to public schools,

graduated from John Jay

High School, John Jay,

the first Chief Justice

of the United States,

and then attended college at James Madison

College at Michigan State University.

James Madison College,

founder of our constitution,

really the major framer of it.

And then law school at the University of

Texas School of Law where I had Charles

Alan Wright,

who most everyone knows is the author

of the federal court treatise and

constitutional law professor and

well known among the United States

Supreme Court justices. He argued

but he's been one of my

mentors. Started at Groce,

Locke & Hebdon in San

formed an appellate boutique.

We think it's the first in Texas that

did nothing but appellate law with Tom

Crofts and Sharon Callaway.

And that's where I was in practice

as a partner in that firm when

I went to the Supreme Court in 2001.

Before we jump into your Supreme Court

years, pretty early in your career,

you were able to argue before

the United States Supreme Court.

Talk a little bit about that

experience, if you don't mind.

Sure. That was a fascinating case.

It was a case that I argued in the Fifth

Circuit and it was not very long after

the whole Rodney King incident.

You remember the police chase and

my case was a police chase case.

Didn't have the racial elements,

but it was a 1983 action filed

by the plaintiff who was a

passenger in a car who alleged she was

removed and injured during the police

stop. So that's a case that I

argued to the Fifth Circuit,

lost two to one and then decided this is

a case that maybe the Supreme Court of

the United States would take up.

So it was the first petition in the

Supreme Court that I ever filed and they

granted it.

So the first thing I thought about

is contacting my former professor,

Charles Alan Wright to see if he could

help moot the case and he did. And this

was mid 1990s. I'll give you

just a little vignette about it.

So Georgetown had by this time already

set up a moot court and you could argue

to their moot court program at Georgetown,

but I wanted to do it at the University

of Texas School of Law in part because

this was around the time that

Hopwood was being litigated.

Remember there are some people saying

that really African Americans should not

be at this institution or not

in the number because they lack

qualifications. And I thought, well,

let me show them that

there's a recent graduate.

I was eight years out of law school that

is now arguing at the highest court and

opened it up for students to watch just

to show that as an example that that may

not necessarily be the

case. People can succeed.

So Charles Alan Wright put

together a new court, argued it,

and he asked all of the questions that

the Supreme Court would ask and more

and really got me ready for my first

argument on election day in November of

1996.

You went on to argue the

case as a relatively young

lawyer, as you pointed out.

So what was that experience like? I mean,

I'm thinking about being eight years

into your career as a lawyer and taking

your place at the lector in that

magnificent building in front of nine very

interesting personalities,

I'm sure. So besides the moot,

how did you go about preparing for

that at such a relatively young age?

Well, what I did was read

every case a thousand times,

Section 1983 cases that the Supreme

Court had addressed and read the

transcripts of all the oral arguments

that I could get ahold of where the

current justices had asked questions,

worked with my colleagues and had other

informal moot courts and everything you

do as an appellate lawyer to

get ready for an argument.

And then I flew to DC and it was my

first time ever in Washington DC.

So that was pretty incredible. I stayed

at the Jefferson Hotel just for fun.

Really.

I didn't know anything about DC.

I had a couple interesting

periods before the argument.

The argument was on a Tuesday.

On Sunday, I think it was,

I appeared before court TV.

Do you remember that podcast and

gave an interview with them and then

I also had an interview in CNN.

What I was thinking at the time was,

I'll never do this again,

probably. I mean, I'll want to,

but this is pretty unique.

And so when people ask whether I

could be interviewed, I said yes.

Walked into N for the interview and I had

to convince them that I was the lawyer

that was going to be arguing this case.

I think they thought I was too young.

I remember walking into the green room

and Trent Lott was there and William

Bennett, they were there to talk

about the presidential election.

So I got to meet them and then have

my interview and that's Monday night,

I guess is when it was broadcast. And

that was the first time that I laid eyes

on plaintiff because they

interviewed her as well.

The Monday morning I went to the Supreme

Court to hear oral arguments just so I

could get sort of a sense of the

courtroom. After that argument,

I went up to a US Marshall

and I said, "Look,

I'm going to be arguing tomorrow and

you've seen a lot of these arguments.

Do you have any advice for me? "

And this was a young, not young,

but diminutive US marshal. She

was probably five foot five.

And she kind of looked up to me and

she said, "Well, I'm not a lawyer.

I don't really know a lot of

what's going on here." She said,

"But I can tell you this, the one

thing." And she said, "I've asked Scalia,

how does he know whether a lawyer

who's arguing here has any experience,

knows what they're doing?" And

she told me that Scalia said,

"If the lawyer knows that at the podium,

there is a handle on the right hand side

of the lecture. And if you twirl that

handle, it'll raise the notes or

lower your notes." He said, "Well,

that lawyer's probably been here before.

The SG always knows. If nothing else,

I was prepared and working

hard on my opening argument,

but that just gave me a little bit

of information that I could use.

And so when Chief Justice

Rank was called the case,

the first thing I did was twirl that rank.

And I don't know if the

notes went up or down,

but it just kind of made me

feel like what I was doing.

I kind of looked at Scalia and maybe he

nodded a little bit and then I could get

going. It was thrilling argument.

If you couldn't tell it

was going up or down,

maybe you just got punked by the

marshal. That's a neat detail.

Everyone says, and it's

true, the questions,

they come at you right away and they're

ferocious and they don't let you go.

It's a battle. You feel like

you've got to hold your own.

And I took some advice from

Professor Wright. He said,

be very careful about conceding points.

He told me this is going to be a close

case and you don't want to lose anyone

who's in the middle and they're

going to test you, be very careful.

And there's one point where

Justice Stevens asked me a

hypothetical that seemed

to me it was safe to concede. It

was so extreme. I said, "Well,

maybe in that event, Justice

Stevens." And as soon as I said that,

not two seconds later, Justice

Scalia jumped up and said,

"I don't understand why you're

conceding this point." Just to show that

Professor Wright knew what he was talking

about and you had to be very careful.

So that case, the other

very, I don't know,

dramatic point was they kept asking

questions. At the US Supreme Court,

you've got to reserve

your own rebuttal time.

At least I don't recall a yellow light.

I knew when there was 10 minutes left

and then there was eight minutes and then

five minutes in my mind I was going

to reserve five minutes for rebuttal.

And then there was four and three and

the questions kept coming and then two,

and then the time went out and I'm the

petitioner and it meant that I had waived

my rebuttal time completely and

I'm thinking this is devastating.

I was thinking, what are you

doing? And so as I'm sitting down,

I'm thinking that was horrible. But

then I thought, well, it's also over.

At this point,

I could just sit back and I don't have

to take notes and I can just relax and

hear the rest of the argument. And then

there was a point at the very end at

adverse counsel's argument where Breyer

asked about the record and it was about

the,

this was a case where the police officer

allegedly committed the violent attack

on the passenger,

had a record himself and it was really

a series of misdemeanor traffic arrests.

And with one incident that

you might call violent,

and that was a fraternity fight at the

University of Oklahoma long before he was

a cadet with the police department.

And so Breyer said, "Is

that in the record?" And my

adverse counsel said, "Yes,

it is. " And Breyer said,

"Well, I want to see it.

So tell the clerk where it is in the

record." And the council said, "Yes,

of course I will." And

so that argument ended.

And as we're approaching each other,

he's extending his hand to congratulate

me in the argument. I'm saying, "Well,

congratulations,

but it's not in the record bringing the

clerk." I had a rebuttal is my point in

the end.

Had to go back to the court and let them

know that this was not in the record

and that was a very important

part of the argument.

What do they tell advocates, whether

experienced or inexperienced? I mean,

if you just continue to get grilled

throughout the time of your opening,

how do you gracefully end the opening

part of your argument so that you do

reserve time for rebuttal?

You just have to take control.

And I've learned that said I

would've just said at five minutes,

may I adjust that on rebuttal. And

the chief would've said, "That's fine,

and then bring the other lawyer to the

podium." I should have known that I

didn't and it's one of those

things that you learn in practice.

My next argument at the Supreme Court

was a couple years later and by then I

felt like I had a little bit more command

of my argument and how I would addres

the court. In fact, even at one

point I made the court laugh,

really not intentionally,

but I felt uncomfortable enough to make

a point that was somewhat humorous.

One other question I wanted to ask real

quick about that whole experience was

you talk about it being sort of like a

battle and you're just constantly getting

grilled.

This is also not a 20-minute argument

situation like we commonly have

here in our Texas state courts.

I can't remember what's the standard

amount of time or what time were you given

for that opening argument?

30 Minutes per side.

30. Okay. Well, that's not as

bad as I feared it might be,

but still 30 minutes of

constant peppering is ...

It's longer these days because the

court chief lets it go on longer.

But I'll tell you what helps. What

helped me, there were a couple points.

One was where Reinquist intervened

when Justice Ginsburg was asking a

question that I thought was a little

tangential and Reinquist agreed.

And so that let me get back into

my argument. So that was one.

And the other was when O'Connor asked a

question about the court's charge and I

was so ready for that question

because I had in looking at the

transcripts of former oral arguments,

it seemed like she always

asked that question.

She always had some question about the

charge and what objection was made and

what was the instruction and

all of that. And so I had that,

I didn't have the whole

argument memorized, but I

had that portion memorized.

So when she asked the question,

I just went through seamlessly and then

that kind of gave me a little bit of

confidence to go on the

rest of the argument.

Speaking of command of the courtroom,

I want to transition into

your Supreme Court years.

You joined the court in

Yes.

When did you decide that you wanted

to go that route and become a judge?

Well, it was more a question

of getting an offer.

So first Raul Gonzalez left the court.

That must have been in, I don't know,

the late 80s or early, probably 1990s,

somewhere around there, the late 90s.

I think he was on a tool. He was

my judge, so I should know this.

When I got a call from

someone I will not name,

but who was not in Governor Bush's office,

but asked me whether I would be

interested in replacing Justice Gonzalez.

And that went faster than I thought the

sort of activity surrounding replacing

that justice.

I kind of hemmed and hogged thinking I'm

too young and I'm not sure if I'm ready

for that and do I really want to

leave San Antonio and I'm doing this,

et cetera, when the replacement was

named. And that was Al Gonzalez.

And I thought, okay,

maybe I had a little bit of an

opportunity but I blew it and well,

that'll never come

again. But then George W.

Bush won the White House and one of

his first decisions was to take Al

Gonzalez with him to

be White House counsel.

So there was another vacancy on the

court. And this time when I got the call,

I thought I'd ever get three calls for

even the possibility of being on the

Supreme Court of Texas.

I love appellate work.

It would be amazing to

be writing the opinions,

just being an advocate before the

court. And so I sort of left on it.

And when they asked to come interview,

I drove up to Austin and

interviewed with Governor Perry.

It was the first time I'd met him.

It was an interesting time in Texas

because when George W. Bush left,

he took a lot of political

heavyweights with him.

And so Governor Perry was

kind of deciding on his own,

what his own path was going to be.

So I got an invitation to interview and

I think it was for two reasons. One,

John Cornyn,

who I knew from San Antonio who was on

the district bench before he was AG.

I had that connection and I think he had

a conversation with Perry's office and

Bill Jones was Governor Perry's council,

general counsel.

And I'd known him for a long time as well.

I think those two sort of helped put my

name in the mix and I wasn't the only

name.

There were others that helped get me the

interview to begin with and ultimately

he asked me to serve.

Am I correct that you were the first

African American justice on the Texas

Supreme Court?

Yes, that's correct. That's in 2001.

And you think of all the decades and it

was pretty historic so much so that when

this is timely, when I was announced,

I think on that same day or that same

weekend or a few days later to the San

Antonio Spurs game in San Antonio and

that day my name had been in San Antonio

Express News and I was on the

cover of the paper, et cetera.

A few people recognized me.

This one old lady came up to me and

she brought her grandson and she said,

"I just wanted him to meet you and I was

so honored that you're going to be on

the court." And it just reminded me that

this wasn't a trivial thing for people

to see that someone like them

could be on the Supreme Court.

It struck me as important, not

as what I would do in office,

but just as a symbol of where we had

come in our state and in our country.

Well, to that point relatedly,

you've spoken several times about

your personal family heritage and

how was your great, great

grandfather or three greats,

your third great-grandfather actually

was the freed slave if I remember the

story correctly.

I've heard you talk about that before

and the whole historic significance of

your appointment and then subsequent

elections really shouldn't be lost on

anyone considering how you were

able to trace that history.

Tell us a little about

how you found that out,

how that's impacted you

and your public service. I.

Would say it started with

my father and with roots.

You remember that Alex Haley book

where he traced his

ancestry back to Africa.

And I remember watching that with my

father and we went right around that time

and got the old family Bible out where

you could see my father's mother and

maybe grandfather or grandparents. That's

about as far back as in those times.

But my father caught

the bug, genealogy bug.

And so he kept trying to sleuth,

figure out this and that.

When I was in law school my first

year and I saw the Texas Genealogical

Library and state archives,

I thought this would be a place to look

because I wasn't born in Texas nor my

father. His mother was born in

Palestine, Texas in Anderson County.

And so there was generations before

her that lived in Texas. And so we

decided, let's see what we find out.

My grandmother was still living at the

time and she knew who her grandmother

was, but not beyond that.

We just did little research in those

archives and library and found the name

of Shedrick Willis in an

obituary. Shedrick Willis

was the person you mentioned,

my great, great, great grandfather.

And the obituary said, Shedrick Willis,

well-known Negro dies at age 86 and 1903.

And before the war he was owned

by Judge Nicholas W. Battle.

And that was the first time we

were reading this and we're like,

"Oh my goodness, this is

the first that we knew of.

" My dad and I were standing

there reading this together.

So that's how we found out to begin with.

And then you do a little more digging

and there's not a whole lot you can find

directly about Shedrick Willis,

not right away at least,

but you certainly could about Judge

Battle. He was a very prominent.

He was a colleague of Baylor,

I mean the Baylor of Baylor

University in Waco at the time.

He was a former district attorney and

then he was district judge and then he

left to fight in the Civil War.

And so there's all kinds

of information about him.

And then thinking a little

bit more about Willis,

we found out that he was a blacksmith and

we knew that because there was another

obituary in the Dallas Warning News

that said something like this well-known

carpenter had died, but he in 18,

I don't know if it said the year,

but before the war,

he shot Sam Houston's horse and

he was kind of famous for that.

That struck me very interesting.

Anyway, after the war,

he had a shop in Waco and there's

an advertisement in the Waco

directory that I've got a copy of it

on my wall here in the office that says

he's blacksmith wheel right

and horseshore. Anyway,

so he found a way for the labor

to support his family financially

rather than go to an owner.

And then the most incredible thing was

in the first obituary that I talked about

that my father and I have read,

it said that he served two terms on the

Waco City Council after the Civil War.

So this is somebody who was private

property one day and a couple years later,

a public servant, a leader in

the community in Waco, Texas.

It's just amazing to me that that happened

and that as his descendant who was

owned by a judge, I became

Chief Justice of Texas.

So then I joined the law firm here,

Alexander Jefferson and that was

That same year within months the

firm brought Marcy Hogan Greer to the

firm as a partner.

She was an outstanding appellate lawyer

and commercial litigator at Fulbright

and then she joined our firm. And then

I had a conversation with her one day

where she said that she

was the great, great,

great granddaughter of Sam Houston.

So we have that connection that

we knew nothing about until

we joined forces as partners at the firm.

History and it's an amazing thing

when you study it and you see pass

cross like that, that truly is. I mean

for y'all to be partners now after that,

sharing that history is just incredible.

And I'll say,

and this is kind of what I will say as

president of the American Law Institute

and I'll do that for a long time,

today we're in a situation where the

country is at odds and everyone is

polarized and you're supposed

to be in one camp or the other.

And if you're in this camp,

you're supposed to hate that camp

and there's no way you can get along.

And this is just to me,

this story is a symbol of our

nation overcoming those sorts

of divisions and finding ways to work

together and to compromise no matter what

and before. And that's to me,

our constitution and our history

bring that is unique in the world

and we shouldn't despair even

today we shouldn't despair that we

can find ways to work together in a

very productive way no matter what our

difference is. It's one reason I was so

happy to be elected to be president of

the American Law Institute because it's

an organization where there are fierce

disagreements about the law and these

are very important debates where

they're advocates all sides, but they

come together. They're excellent lawyers,

professors and judges and hash it

out in a civil way and make some

compromises. And hopefully

if the job is done right,

are producing products of a more

modern and clear law that is

to the benefit of lawyers,

but more importantly to the lawyer's

clients that are dealing with these very

serious disputes. Well.

We wanted to talk with you in

detail about your ALI presidency.

And so that seems like a good segue

into that part of the conversation.

How did you first get involved in ALI?

And maybe a quick summary of those of us

who are lawyers certainly know what it

is, but for maybe those who don't or don't

appreciate it, tell us what ALI does.

Well, first I didn't know what ALI was,

but I knew what the

restatement of torts was.

That was kind of our Bible in

torts class and law school.

I knew who Dean Keeton was who was a

reporter for the Torts Project and through

that, I think I learned about ALI.

And I already mentioned Charles

Alan Wright was my professor.

He was my professor for constitutional

law for federal courts and for a Supreme

Court seminar where each one of us played

the role of a sitting US Supreme Court

justice and we decided the

cases that were court that term.

The sources were restatement provisions.

And that's when I learned about

Charles Island Wright's involvement.

He was president of the American

Law Institute, my former professor.

I always held it in high regard.

And then Professor Wright had the

idea as he was president to make

sure that the justices of the Supreme

Court of Texas were members of the

American Law Institute.

Because what the Institute does is work to

modernize and improve and clarify the

law for the better administration of

justice itself law.

And so the only way it is

adopted is through court.

And one of the best ways for its

adoption to occur is through Supreme

Courts,

either the Supreme Court of the

United States or the Supreme Courts of

the states and territories.

And so one of his projects was to make

sure that Supreme Court justices became

members of the American Law Institute

so they would study the work and if they

believed that it was an accurate portrayal

of the law adopted in their states

and that way it would resonate nationally.

That was Professor Wright's plan.

And although he died in 2000,

it became very clear to me that it was

also Tom Phillips and Nathan Hecht and

others on the court's adoption of that.

So they encouraged me to

accept a nomination if it happened and

I was nominated to be a member and then

elected. And that was in 2001,

shortly after I came to the court and

started going to the meetings and was just

fascinated with what

happens at those meetings.

It's you walk into a big room where

there's a thousand people and there are

microphones and there are reporters

are talking about their project.

It might be torts or property or

contracts or conflict of laws or

Uniform Commercial Code is a joint

project of ALI and the Uniform Law

Commission. So those are the topics. And

then you see walking up to the podium,

the people you read about every day as

a law student and as a lawyer that the

famous judges and the great lawyers

and the professors of high esteem and

they're just debating these

very important principles,

debating something that you're working

on and you start understanding that

there's a great source of information

that is much bigger than maybe you were

looking at as a law student or as a

lawyer and the level of sophisticated

argument is so much higher.

I was intrigued by that

and love being part of that

process. As a member,

you can contribute and you comment

on draft and they're considered

seriously if you're serious.

If the questions that you're asking or

the suggestions that you're making are

serious, they're going to be really

debated. So that's what made me excited.

And so I was happy to

I just celebrated my 25th anniversary,

25 years with ALI in 2026

and just a couple weeks ago

was officially installed as

president of the institute.

Where do you see the ALI

going moving forward?

Is their ambition going to

remain the same? I mean,

especially when we have things

like AI coming into the profession,

do you see them kind of

intersecting with that?

So everything is changed in the law

and AI is a big reason for that.

So yes,

this is something that the institute is

going to be grappling with for a long

time, but hopefully in a productive

way. So one thing that the ALI does,

we're not a tech company,

we're an ideas company and our

model is to share the information.

After this process, we

go through this process.

We want people to read it and to apply it.

And what AI does is

accelerate that process.

We're not really a publisher,

but our products are published.

And now in publication,

everything is available because you have

all these companies out there and bots

and AI, ChatGPT and

Claude and everyone else,

that's all they do is they

gather all this information,

but they don't always do it

accurately is the problem.

And we know that with

hallucinations and court opinions,

it's true also for ALI.

So one thing that I think we can start

concentrating on is

being the gold standard,

to make sure that if

you're citing our work,

maybe there's some way to make sure that

it is the work that it is accurate and

make sure it's available to them.

Yeah, that's a big deal.

So those are some of the

things we're working on. Also,

we've got a project looking at, like

in tort, where does AI come into that?

So you've got autonomous vehicles

that are involved in accidents.

What's the standard for reasonable

autonomous driver? I mean,

what does it mean to be

negligent if you're a technology?

So there are all kinds of interesting

things that AI is looking at with

respect to artificial

intelligence right now.

How do you balance?

How does ALI intend to balance

the incredibly rapid pace at

which the technology

is developing? I mean,

everything I hear and read is

we're going to get to agentic super

intelligence within a much shorter period

of time than anyone would've suspected

even five years ago. ALI, as I understand

it, as how you've described it,

is there's a lot of study involved in

recommendation and discussion and debate.

That is a great process.

I just wonder about how there's

going to be time to do that when the

technology is just blowing past everybody.

So that's exactly right.

But we also have in ALI,

the lawyers and the professors and

the judges that are working on these

issues every day,

general counsel and the judges who

are presiding over these cases,

the lawyers who are presenting

them, patent lawyer.

So I don't actually know the answer,

but do know that we can

tap into their expertise,

their members because they are excellent

in what they do and they can help

advise us on how to work

through these issues.

And tomorrow we open the paper

and you won't open papers anymore,

but you'll get something on your

phone that says there's a whole new,

huge development that some AI

company has developed that's going to

change everything. So I don't know.

We're going to have to act faster than

we have in the past and adapt more

quickly, but never give up the quality,

the intense analytical work

that human beings can do I

think still in many ways better than

machines. And I don't know how long that

will be true, but the human

dimension, there always needs to be,

I think just for morality for humanity,

there's got to be human being involved

in everywhere that AI exists and I

think that's especially true in the law.

So it's a good question and

it's not answered today and

I think it's going to be

... Yeah, but we're just

going to keep working on it.

How long is your presidency?

It's a three-year term

with a three-term max.

So the maximum nine years.

We just celebrated in 1923

a hundred years of ALI.

It was established in 1923.

William Howard Taft was involved

and the leaders of the law in

that era who understood the law was

being developed in different ways in

different states and territories and

state and federal coordinators becoming a

mess.

And so we had to have some way to at least

think about uniformity and that those

founders understood it would It wouldn't

mean that ALI could dictate to any

court what the black

letter would be in law,

but they could offer best practices,

best codes to courts.

We're now bringing it to legislatures

and our principles projects to make again

for the better administrative justice.

I think that general idea

still holds true today.

I hope we can use that to tackle

all of these new iterations and new

technologies that are coming to bear.

Well, it's an exciting time for you to

take the leadership of ALI and I'm sure

somewhat stressful with all of this

stuff coming on the horizon or even,

like you say, every day,

you just open an app on your phone and

you've got some new breaking news about

some technological development. I mean,

those terms, two subsequent terms,

and it does provide the opportunity

for some continuity of leadership.

I'd say again, congratulations

and maybe I'm sorry.

I'll tell the audience listening to this.

Send me ideas and send ALI ideas that our

director of ALI is Diane Wood.

She's a former Chief Judge of the

Seventh Circuit Court of Appeals,

graduate coincidentally of the

University of Texas School of Law.

Her professor was also

Charles Alan Wright.

So we've got some Texas

connections in ALI,

but our reach spans throughout from

coast to coast and international.

And we're looking for the best and the

brightest comments on projects and new

projects that maybe we

should be taking up.

I'm all ears and I think that is the

strength of our organization and that is

the participation on a voluntary

basis of the best and the brightest

in our profession.

Well, we're kind of talking about

futurism and where the law is headed.

One of the big achievements I think

when you were chief justice is starting

cameras in the courtroom and streaming

oral arguments. And I guess now we're,

gosh, we're almost 20 years into that.

I mean, how did you see that change?

Did you see a change in the way

that lawyers acted and all that?

Because I think that's always been

a fear at the US Supreme Court.

I'm just curious about your experience.

The biggest change I saw was the way

judges acted. And I'll say it in this way,

when you know that there are going

to be cameras in the courtroom,

you have an incentive to be more

prepared for oral arguments. It made me,

I would say,

hyper sensitive to being as prepared

as I could be so that my questions were

intelligent to show that I understood

what was going on in the case.

And I think that was true of my

colleagues as well. So that's number one.

I think it was very good for the

court as an institution be even

better or more fully engaged

in the argument process,

which is important to

the lawyers. But again,

ultimately very important to the clients

to know that when they had their day in

court, it was completely a thorough

examination and fair of both sides.

So that's one. The second thing

I would say is we were warned

that lawyers would play to the cameras.

And this is a fear that people talk

about at the US Supreme Court too,

that that'll be the ultimate

impact. I think both of you know,

and the audience out there

who are appellate lawyers

know and that's really hard

to do because you can start and I can

remember one example of what I thought it

was a lawyer trying to play to

the camera. They start that way,

but then the questions come.

And you have to answer the questions

and it's not a jury argument and doesn't

matter how much you flail your arms.

It's more of an intellectual

exercise. It's somewhat academic.

The premium is placed on

preparation. The judges are prepared,

but the lawyers know

the record and the law.

They're going to be much more effective

at the podium than they would be with a

motion. So very quickly you're centered

on the right thing in an oral argument

and that happens whether the

cameras are there or not.

But what the cameras do is

open the process to the public.

Public can see law at work and it

opens the process to law students

who want to see how an appellate

argument plays out and how they could do,

how they could be an

appellate lawyer themselves.

And it opens it up to journalists who ...

Now if you're a journalist in El Paso,

you don't have to drive

down or fly down to Austin,

Texas to see what's happening. And

it opens it up to the legislature.

They see that some of these,

maybe there's a statutory fix and they

can watch the debate about a statute that

they helped put in place.

And so there's so many different

ways that this benefits, I think,

the public and the development of the law.

If you have a case that has some

relationship to one that's going to be

argued next week, you're going to walk,

won't you?

Because you're curious how this is going

to impact your case that's either in

the trial court or the court of appeals,

maybe ultimately to the Supreme Court.

So it helps develop a lot

more intense interest in what

the court does. And on top of that,

I think it wouldn't have been as effective

to open it up to oral arguments and

put cameras in the courtroom if we hadn't

also a couple years after cameras made

electronic filing available to everyone.

And so now you can watch the argument,

but you can also read all the briefs.

You can pull them up in an instant.

And that I think was, again, we can't

be transparent about everything.

The kind of transparency that makes,

I think you have a greater appreciation

of what the lawyers are having to go

through and what the judges are

facing with these complex arguments,

it enhances faith,

faith in the court system. I think that's

important because that's what we rely

on. The judges, it's

often said, and it's true,

you don't have power of the sword.

You don't have the power of the purse.

It's the opinions. It's the judgment

that you release that are important.

I've been really pleased at how the

Supreme Court's adoption of video oral

argument has sort of trickled down to

the intermediate courts of appeals too.

It's good and bad. I mean, as an advocate,

you get to go back and

critique yourself, I guess,

and it's preserved for posterity,

rightly or wrongly, or good or bad.

But that's been, I think, a really nice

benefit. And I know the Supreme Court,

the US Supreme Court has resisted it, but

I think the Texas Supreme Court, okay,

it's a state Supreme Court,

but the issues that come before that

court are hugely important and lots of

dollars at stake and sometimes they

involve big time political issues.

But for the national media,

maybe the coverage is not the

same in your former court.

But it's difficult for me

to really understand other

than just not wanting to do

it or just history,

why the US Supremes would be so resistant

to it if there is a way to do it. You

can't prevent someone from

grandstanding or showboating,

but the people who appear in

that court on a regular basis,

it seems to me that that wouldn't want

to be the reputation that you would want

to get as an advocate there is

someone who's playing to the camera.

Yes, but on the other hand,

and this was true of the court at the

same time that I'm opening up the court

for cameras,

also enhancing security at the court

itself because the Supreme Court of Texas

got threats, judges do. Well,

the US Supreme Court, I mean,

that's an exponentially, I think,

more dangerous aspect of their jobs.

You get these people that are just ...

We've heard about people outside

of Kavanaugh's office, home.

We can't imagine what kinds of threats

they get that are serious where you

really need the US marshals to become

involved. And so the more public you are,

the more you expose yourself to

these sorts of potential threats.

And so there's a lot more I think to go.

So you have to think about it in

terms of balance. They have done,

they have opened up. You remember

when we first started practicing,

or at least when I first

started practicing,

you wouldn't have access to even audio

tapes. Those were only reserved for

academic studies for professors could

come and listen to some of those tapes,

but they were prohibited.

The public was prohibited from

accessing those generally.

So there's been a whole lot of opening

up about at least the access to the audio

of Supreme Court arguments. I

think that's been a huge step.

And I would also say I would not have

wanted anyone else to order the court to

do this.

I think it's a third branch decision

whether it is something that ought to

be done.

And so read about efforts to force the

US Supreme Court to do this or that.

I don't think that's right at all.

I think that's got to come from the court

itself understanding all the pros and

cons. It's not just about people

being flashy at arguments,

but it's about a lot more of the dignity

of the court. They have traditions that

are important that we want to see

maintained and about safety and all those

issues. And that's got to

be a conversation that the

justices themselves have.

That's my opinion.

Anyway.

We do in the meantime have there are

podcasts out there that reproduce the

audio. OEA is one of them.

It's a helpful listen if you want to

hear what actually happens inside the

courtroom at the Supreme Court. And to

the point about Supreme Court arguments,

the worry about it

becoming performance art.

I'm not going to say it's

completely illegitimate.

We've seen an example in the media

recently that even resulted in a TED Talk

coming out of the big

redistricting case from Louisiana.

I think Neal Katyal was taking a lot of

credit on Twitter and ultimately in his

TED Talk for how much his advocacy

helped sway the result in that case.

I guess anybody could do

that with or without cameras,

but I don't mean to be dismissive

of any concerns about that.

It just seems like I understand and

agree with your point about history and

tradition when it comes to maintaining

the dignity of the institution. And

there's still, to some degree,

people can still go and say things after

the fact like that particular advocate

did. There's been a lot of

commentary made about that.

That's true. I'm still a fan.

I think it's still good and I think

it's good for all the reasons that I

mentioned. But in the end, I think

that I'll say this, when the public ...

It's like when you ask a juror,

what was your experience?

You sat through the trial and you rendered

a verdict and now you ask them a week

or two later and they say this

was a powerful experience.

It really impresses them that

the legal system works and that

it is serious and it's important for

a person to have their day in court.

I think the same is true when

you watch these oral arguments.

There are a lot of caricatures

about justices on the

Supreme Court of the United

States and justices on the

Supreme Court of Texas.

You have caricatures and people are

quick to read a headline and come to an

opinion about the all Republican Supreme

Court or whatever it is. But when you

have the access to watch them as

much as you can do their work,

you see that often they're grappling with

very important questions about what a

statute means or where the common law is

headed or the tension between a farmer

and an urban business on water

rights or whatever it is.

These are very hard questions and you see

the court trying to work through them.

I just think it helps as

kind of a civic education.

It helps people understand

their democracy better.

This question relates to the topics

we've been discussing. I mean,

it seems like we've covered two major

accomplishments that happened while you

were Chief Justice.

We talked about cameras in the Supreme

Court courtroom and I think you're right.

I think that certainly helped the court's

appearance of transparency and has

been a really good thing overall. And

you also mentioned e-filing. I mean,

those are both significant developments

that happened during your time as chief.

So you've certainly left

your mark in that way.

Is there anything else during your

time as the Chief Justice of Texas that

you're particularly proud of

that the court accomplished?

Well, yes, maybe even bigger than

those two is access to justice.

We worked very hard on establishing a

relationship with the legislature in

which the legislature

promoted access to justice.

We had never had direct appropriations

from the legislature to legal aid in

the time before 2000,

I think it was 2011 or so and

argued to the legislature,

this was during a time there was

IOLTA programs were just plummeting

because the interest rates were going

down and down and down and that's what

funded legal aid programs through our

IOLTA programs.

And so I was talking to the legislature

that all the money that was there is

drying up.

And so there are people who are now no

longer able to protect their basic civil

rights, civil legal needs. That year,

the legislature appropriated millions of

dollars and they haven't stopped since

then and that's let more people get

their rights where you can't afford a

lawyer, where else do you turn,

but to pro bono or legal aid organizations

to do so. And if you don't have

funding, most of our

legal needs can't be met.

And it's not just for poor people,

for people who are middle class,

you can't afford a lawyer to argue about

defense that fell down in your backyard

or you're a small business and

you're sued for breach of contract.

So that's one thing that you put on the

table for all branches, legislative,

executive and judicial that we have to

do better about making the law accessible

to all of us, whether you're

rich or poor or in between.

So I think that was a

major accomplishment.

And then one thing people don't really

know is the court has its docket and

decides cases,

but the chief justice also goes to

the legislature about the general

administration of justice as it works.

I'll just leave you with

one other example of that.

And that was in the area of juvenile

the 90s,

more and more police officers on campus

that were issuing tickets to kids,

misdemeanor class C misdemeanor

tickets for violating school codes.

I'm talking about things like yelling

at the teacher or a fight in the hallway

or wearing the wrong clothes. Those sorts

of things were resulting in tickets.

I went and visited a juvenile court

and to see what does that mean?

And that means single mothers have to

come to court and try to argue their case

without a lawyer to get a ticket

dismissed where it's a $200 ticket,

whatever it is that they can't afford.

And many of these kids wound

up being suspended or expelled.

And so we had a public hearing

at the Supreme Court to say,

"Does this really make sense?" And

then I could take the results of that

hearing, go to the judicial council,

which is the policymaking arm of the

judiciary and think about going to

legislators and saying, "This

needs to be reformed." Anyway,

the bottom line is it was.

And from one year to the next,

there were hundreds of thousands of

fewer of these tickets being given,

meant kids were staying in school longer.

There are things like that courts can

do that are outside of the docket,

but important to the overall legal

landscape Chief Justice especially can be

doing out there. So things like

that I think are important.

And Chief Justice Hecht continued

all of those programs and more.

He also looked at mental anguish.

He looked at what does the court do

during a COVID-19 situation when all the

courts are closed, but trials

need to keep going. And again,

those are not specifically

docket type things,

but there are ways to keep our legal

system healthy so that they can

react to the legitimate

needs of Texas citizens.

One thing that I think you've spoken out

since your time on the bench and other

former chiefs have as well is

partisan judicial elections. I mean,

do we think that's going to change

realistically in Texas anytime soon?

Likely not, but it doesn't mean that

we shouldn't keep talking about it.

We will have an election coming up

and this has happened before where

potentially just because of what

happens at the top of the ticket,

many talented judges lower

down or swept out of office,

not because they were bad at the work

or they were slow or inefficient,

but because for that year they had the

wrong political affiliation by their

name. That still doesn't make sense to me.

We shouldn't have that kind of system.

I have no problem with a smart,

hardworking Democratic judge, even

though I was, I hope, a smart,

hardworking Republican judge.

We want the judges that are going to

apply the law as objectively as they

possibly can, Republican or Democrat.

And they shouldn't be swept out because

some of the top of the ticket sort of

taking the wind out of their sales. So

one of the problems is it focuses less on

merit than it does on party affiliation.

And if it doesn't focus

on party affiliation,

then it focuses on the sound of your

name. Jefferson was a good name.

Yakel was not Travis County. It's hard

to win with that name. You great judge,

federal district judge now retired,

but that's just an example.

So if it's not co-affiliation

or the sound of your name,

then it comes down to how much

money you can raise and get on TV.

And if you think about it, none of

those tells you sound of your name,

political affiliation, money,

none of those say whether

you're going to be a good judge.

And that's the problem.

We need to focus more on the merit of

and experience of a judge than those

other factors.

Well, Chief Justice Jefferson,

this has been a great conversation.

We've certainly enjoyed spending time

with you this afternoon and thank you for

all your time and willingness

to come on and talk with us.

Congratulations again on your

ALI election as president.

That's an exciting thing to have

happen and look forward to monitoring,

watching your leadership in that

organization for the next several years.

Before we let you go,

our tradition is to ask our

guest for a tip or a war story.

It could be related to appellate practice

and you're certainly well suited to

provide that.

We haven't really talked that much

about appellate practices per se because

we've had so many other

good topics to cover.

I think it's going to be

great for our listener,

but do you have a tip or a

war story to share as we part?

Well,

I'll tell you this war story and it's

related to the petition that was granted

for my first case before

the US Supreme Court.

So this was a case where I

represented Bryan County,

Oklahoma and it was the police pursuit

excessive force case and we defended.

We were defending that case. Our

side lost at the district court,

a jury verdict.

And so we appealed and I lost

two to one at the Fifth Circuit.

And so then I tell the client,

"We should take this up to the US Supreme

Court." Now this is a public entity.

I'm talking to the commissioner's court

in Oklahoma and they go to me and they

say, "Look, we keep losing.

We're spending public funds

on this lawsuit and they say,

we're not going to spend more public

money to keep losing." And they say, "No,

thank you.

" And so then I go back to them maybe a

few days later the next week and I said,

"Look,

I believe in this case and I think we've

got a real shot at the Supreme Court.

So let's do this. Don't pay me.

I will file the petition for cert

for free and we'll resume the

billing relationship if they grant the

petition." So they said under those

circumstances, yes, you can

file a petition. I say that

I guess as a way to say,

find your own way. You don't know where

it's going to go, but as a lawyer,

if you believe in a case, find a way

to get it presented and take risks,

take some risk. And sometimes they

pay off. If I had just let it stop,

we're not going to take

it to the Supreme Court.

I probably never would've gotten on

Governor Perry's radar as an appellate

advocate. But I wasn't thinking that then,

but just saying just take some

risks and take some chances,

believe in yourself and

it's not empty belief.

You do the work to have the experience,

but believe in yourself and take risks

and ultimately they can pay off or make

you feel better about yourself anyway.

Well, we certainly appreciate that piece

of advice and certainly you've got the

benefit of all your experience

in presenting that to our

listeners and watchers.

And thank you again,

Judge, for being with us.

Thanks for what you're doing.

It was important for the court

to have cameras in the courtroom.

It's important to the public

also to have broadcasts,

podcasts like this that delve

into what we do as lawyers and

what happens in appellate courts.

And the more exposure that the legal

profession has to the public, the better.

They understand there's a place to go

in which if you have the law behind your

side and a good advocate,

you can prevail and against all odds

and you're telling those stories through

these podcasts. So thank

you for what you're doing.

Thanks for listening to the

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