A Time for Truth: Reigniting the Promise of America

by Ted Cruz

  “Well, they say that with your first argument, you should pick a case you can’t lose or you can’t win,” he said with a smile. “Ted . . . I think you chose wisely.”

  Although our defeat in Frew was discouraging (but not unexpected), over time we ended up winning repeatedly before the Court. And the nature of the legal issue in the case—an unsettled question of constitutional law—foreshadowed the kinds of matters that would define my five and a half years in Austin. During that time, Texas found itself at the forefront of one major constitutional battle after another.

  Some of that was good fortune, but some of it we affirmatively sought out. When Attorney General Abbott appointed me to the job, he told me, “I want you to look across the country, and if we can step up, defend conservative principles, and make a meaningful difference, go do it.” That was an amazing mandate. I knew then that coming back to Texas to serve under him had been the right decision.

  The thing that amazed me the most about Greg Abbott was his character. He is a man who courageously fights for his principles and who generously shares the credit with the team around him. During my tenure as solicitor general, he allowed me the opportunity to tackle high-profile issues that few other statewide-elected officials would have given to a subordinate. That was a reflection of his humility and deep confidence.

  And he is a man who managed to reject the natural inclination to become bitter or angry with God over being confined to a wheelchair as a young man. I have often wondered how I would have reacted to such an injury. I have no certainty that I would manage his equanimity. But Greg Abbott is at peace with himself and his disability, and Texas made a wise decision in 2014 when it elected him as its governor. I’m confident he’ll prove to be an extraordinary one.

  One of the earliest opportunities to fight for conservative principles presented itself just a week after the oral argument in Frew. On October 14, 2003, the Supreme Court agreed to review a decision by a federal court in California holding that the Pledge of Allegiance cannot be recited in public schools. The appellate court concluded that, because the pledge says “one nation, under God,” it violates the First Amendment’s proscription against laws “respecting an establishment of religion.”

  It was no surprise that the decision came from California. The Ninth Circuit—in which the California federal courts are a major component—tended to issue liberal, sometimes extremely liberal, opinions. But the decision was deeply misguided. It was typical of those on the left who are intent on eradicating any vestige of religion from the public sphere. The First Amendment was not adopted to create government hostility to religion; rather, the First Amendment exists to protect the religious liberty of every American.

  Texas proudly took the lead in defending the Pledge of Allegiance. My team and I wrote an amicus brief, which is a brief filed by someone who has an interest in a case but is not a party to it. We argued, “From the time of the Founding, our Nation has recognized her religious heritage, and the Constitution has never been understood to prohibit those acknowledgments. After all, the national motto is ‘In God We Trust.’ Our Declaration of Independence refers to rights ‘endowed by our Creator.’ ” Our brief pointed out that the Supreme Court even “begins its own proceedings with the cry, ‘God save the United States and this Honorable Court.’ ”

  As the deadline for submitting the brief approached, I spent several days on the phone calling solicitors general in other states to urge them to join our brief. Most had joined, but a handful refused. On the final day, I called each of the holdouts back. “I just wanted to check again and see if your boss wants to join this brief,” I said. “If not, fine, I respect that your boss wants to be one of the few attorneys general in the country who doesn’t support the Pledge of Allegiance. That’s a real profile in courage.”

  In the end, no attorney general wanted to be left standing without a chair when the music stopped. All fifty attorneys general signed Texas’s brief, the first time to my knowledge that every state has signed a single brief submitted to the Supreme Court. And five months later, the Court unanimously reversed the decision of the lower court. We won, and children in California schools were once again free to pledge their allegiance to “one nation, under God.”*

  The question of the Pledge of Allegiance’s constitutionality was one whose answer I felt pretty confident about. But in my first year as solicitor general, the attorney general called with another question I had never considered.

  “Ted,” Abbott asked, “can the Speaker of the Texas House arrest fleeing representatives?”

  Abbott was referring to a group of Democratic state representatives who had fled the state in order to prevent a legislative quorum, which would have allowed the Republican majority to enact a new electoral map of congressional districts.

  Every ten years, per the U.S. Constitution, the nation conducts a census. State legislatures then redraw congressional maps to reflect the number of congressional seats that a state’s new population entitles it to. In the 1980s and ’90s, Democrats controlled the state legislature, and they used their power to gerrymander the map to favor Democrats. As a result, in 2003, 53 percent of our congressmen were Democrats, even though only 44 percent of Texans voted for Democratic congressional candidates.

  By 2003, Republicans had been elected to majorities in the Texas Legislature, and they decided to draw a new map that reflected the views of Texas voters. What entailed was an epic war waged on political and legal battlefields, including renegade Democrats trying to flee the state to prevent a vote. Research into the Texas Constitution revealed the answer to Abbott’s question was “yes.” The Speaker has full authority to arrest absent legislators; indeed, the U.S. Constitution has the same language, and in the eighteenth century, leaders of Congress actually had put members in leg irons to secure their attendance.

  Ultimately, after our office prevailed in several early legal skirmishes, the fleeing legislators returned and the Texas Legislature passed a redistricting map that redrew the geographic boundaries of federal legislative seats. It then became my responsibility to defend the legality of that map in a federal trial before a three-judge court. The central issue was who has the authority to determine the shape of a state’s congressional districts—the state’s elected officials or unelected federal judges. To me, at least, the answer seemed obvious.

  One of the more unpleasant aspects of that litigation was that redistricting cases are among the most expressly racial cases that ever make their way into a twenty-first-century courtroom. Normal Americans don’t treat race as a dominant criterion. We don’t think of people as “my black friends” or as “my Hispanic coworkers.” A friend is simply a friend. A colleague is simply a colleague.

  But congressional seats are different—at least when it comes to redistricting litigation. Seats are routinely divvied up by the litigants on both sides and by the courts in terms of “African-American seats,” “Hispanic seats,” and “Anglo seats.” The precedents in redistricting litigation have made electoral maps’ effect on racial groups the decisive issue in a court of law. As Chief Justice Roberts wrote in the context of affirmative action and education, “It is a sordid business, this divvying us up by race.”*

  Because of the inherently racial nature of this business, litigating redistricting cases is a fate I wouldn’t wish on my worst enemy. But despite my distaste for certain aspects of the litigation, I spent the Christmas season of 2004 in federal court helping lead the trial team in defense of my state’s electoral map.

  One exchange in that trial was particularly memorable—and perhaps even more absurd than the state of the law in this area. It involved state representative Ron Wilson, a flamboyant African-American Democrat with an orange Lamborghini and a penchant for black leather trench coats.

  Wilson represented the inner city of Houston, which had a large percentage of African-American constituents. Because he was a Democrat, Wilson was expected to oppose the Republicans’ redistricting map. But Wilson
realized that although the map increased the number of districts with Republican majorities, it also increased the number of districts with African-American and Hispanic majorities. The losers were white Democratic politicians, who would no longer benefit from the gerrymandering that had insulated them from Texas’s conservative voters.

  Representative Wilson decided to defy Democratic colleagues and support the redistricting plan. “It was never a question of if the redistricting bill would pass,” he said. From his perspective, the question was “Do you stand on the railroad track and try to stop the train, or do you try to get some of your people on the train and not get run over?”26

  This decision did not endear Wilson to a number of his fellow Democrats, including Lee Godfrey, one of the opposing lawyers in the redistricting litigation. During Godfrey’s cross-examination of Wilson at trial, Godfrey accusatorially observed that Wilson comprised “one hundred percent of the African-American legislators” in support of the new map.

  Wilson, never one to back down from a fight, shot back, “I am the only one who had the ‘things’ big enough to do it.” He gestured accordingly.

  I have to confess I was stunned. It is not every day that a witness refers to his genitals in federal court.

  Even more unusual is an attorney who takes the bait.

  “I presume the ‘things’ you refer to are not visible?” said Godfrey.

  “You want to see them?” demanded Wilson.27

  Godfrey paused, ready to accept. But the judge wisely interrupted, “Move on. Move on.” It is a sordid business, this redistricting litigation. But not that sordid.

  As Sun Tsu famously said, “Every battle is won before it is ever fought.” He meant in part that battles are won by choosing the terrain on which the fighting will occur. Litigation is no different. Nothing is more important than how you frame the narrative, which is the intellectual terrain on which the legal battle will be fought.

  In every case, I tried to think about what the judge would tell his or her kindergarten-aged grandchild when the child asked, “Paw-paw, what did you do today?” If you can successfully frame the judge’s one-sentence answer to that question, you’re probably going to win the case. If you can’t, you’re going to lose.

  When the redistricting litigation arrived at the U.S. Supreme Court—after we won in the district court—the opposing side argued that it was unconstitutional for a legislature to be overly political in drawing a redistricting map. They wanted the narrative to be that the mapmakers were hyperpartisan.

  We could have tried to argue that redistricting in Texas had been nonpartisan. The problem was that any such argument would have been ludicrous. Politics permeated every facet of the redistricting process, and I was not about to argue otherwise. Even attempting such an argument would have sacrificed my credibility with the Court, and once an advocate has lost his credibility, he has lost his case.

  Instead, I tried to reframe the narrative. “The central issue,” I said, “is determining which institution is constitutionally vested with the primary responsibility for redistricting: elected legislatures or federal courts.” That was what I wanted Justice Kennedy, the likely swing vote, to tell his grandchild when he was asked what that day’s case was about.

  I emphasized in my argument that the framers of the Constitution understood politics. They knew full well that when you give redistricting decisions to elected politicians, they will make political decisions. In fact, the term gerrymandering comes from Elbridge Gerry, a delegate to the Constitutional Convention whose Massachusetts congressional district was so convoluted it looked like a salamander on the map.

  Framers like Gerry deliberately entrusted elected state politicians with defining the geographic boundaries of congressional districts. Doing so protects our constitutional structure to keep that power in the hands of elected legislatures, because if legislators overstep, voters have the ability to “throw the bums out.” In contrast, voters have no control over the redistricting process if power is taken from the people’s representatives and given to unelected federal judges.

  Ultimately, our argument prevailed. In an opinion authored by Justice Kennedy, the Court declared, “We reject the statewide challenge to Texas’ redistricting as an unconstitutional political gerrymander. . . .”* Justice Kennedy wrote that our opponents “established no legally impermissible use of political classifications.” In other words, of course the legislators who had redrawn Texas’s congressional districts had been political, but there was nothing unconstitutional or illegal about politicians being political.

  The Court’s decision had lasting consequences for Texas. In the next election, Democratic candidates for Congress received the same percentage of statewide votes as they had in the election before the legislature’s redistricting. But in the earlier election, Democratic candidates had won an overrepresentative 53 percent of the state’s congressional seats. In the subsequent election, they won only 41 percent of them.28

  Depending on your political perspective, it is debatable whether the Texas congressional delegation now consists of better representatives for the state. But it is indisputable that the Texas delegation is now more representative of the actual voters in the state. I do not think it is a stretch to suggest that that is how a system of self-government is supposed to work.

  If framing the narrative and guarding one’s credibility are the first two rules of litigation, a third rule—perhaps the most obvious sounding of them all—is: Don’t appeal a victory. But in the course of defending a public display of the Ten Commandments, I confess to having flagrantly violated that rule.

  The case arose when an atheist—a homeless man and former lawyer—was walking through part of the twenty-two acres surrounding the Texas State Capitol. Displayed among sixteen other monuments and twenty-one historical markers is a stone monolith inscribed with the Ten Commandments. The atheist took offense at what he believed was a promotion of religion by the state, and in 2003 I found myself arguing against his claim in the Fifth Circuit Court of Appeals. As with the Pledge of Allegiance case, the Ten Commandments case was an important opportunity to push back against those who want freedom of religion to be the absence of religion. I believe strongly the opposite is the case, and that when the Founders enshrined religious liberty they were welcoming all Americans to worship openly and as they choose, not trying to force them to hide or deny their faith.

  We are a nation founded by men and women who were fleeing religious persecution and coming to a land to seek out and worship their Lord, according to the dictates of their own conscience, without government getting in the way. On that understanding, the purpose of the Establishment Clause was to prevent the federal government from coercing individuals to engage in any particular religious belief or practice. It was not—and is not—about mandating government hostility to religion.

  Indeed, the acknowledgment of our shared Judeo-Christian heritage has been ubiquitous in the history of our country—as we had argued in the Pledge of Allegiance case. Among the best representations of that heritage is the display of the Ten Commandments in the courtroom of the Supreme Court itself—where the tablets appear no less than forty-three times.

  In the course of that argument before the court of appeals, I noted that the precise language on the Texas monument had been composed by a priest, a minister, and a rabbi. At that point, one of the federal judges on the panel observed, “That sounds like the opening of a joke.”

  I rather foolishly responded, “Yes, your honor . . . but I’m pretty sure no one walked into a bar.”

  Fortunately, even though I had violated another cardinal rule of litigation—do not attempt humor because of the risk of a monumental backfire—the judges took pity on me. They laughed heartily.

  Even better, they unanimously ruled in our favor. The court held that Texas’s public display of the Ten Commandments did not violate the First Amendment’s prohibition against laws “respecting an establishment of religion.”

 
Ordinarily, when you have won in the court of appeals, you try very hard to convince the Supreme Court not to hear your case, because if the justices decline to hear it, the lower court decision stands and you win. But across the country, other appellate courts had found public displays of the Ten Commandments to be unconstitutional. Abbott and I had a long discussion about the strong likelihood that the Supreme Court would take one of these cases in the next couple of years. So we asked ourselves, “Which case has the best chance of protecting the Ten Commandments, and the freedom of religion?”

  We concluded that no state had a better chance of securing a victory on this issue in the Supreme Court than Texas did. Other states had to overcome ill-advised statements by government officials that the explicit purpose of their displays of the Ten Commandments was religious. Not so in Texas, where the Fraternal Order of Eagles—a secular service organization—had erected the monument to promote morals and responsibility among young people. Moreover, the statue had been standing since 1961 and was surrounded by dozens of secular monuments. The Supreme Court would consider both of those factors—being part of a historical tradition and being associated with nonreligious displays—to weigh in favor of a display’s constitutionality.

  We therefore took the unusual step of filing a brief before the U.S. Supreme Court saying that if the Court was inclined to consider a case raising this legal question, it should agree with our opponent’s request that the Court hear our case. That was a high-risk proposition, because the Supreme Court is extremely unpredictable on cases involving religion. Only three of the nine justices were sure to rule in our favor. If we couldn’t persuade more than Chief Justice Rehnquist and Justices Scalia and Thomas, we would lose the entire case.