Texas Attorney General Candidates Aim to Overturn Landmark Supreme Court Rulings

In a recent candidate forum in Tyler, Texas, U.S. Representative Chip Roy and State Senator Mayes Middleton, both vying for the Republican nomination for Texas Attorney General, articulated their intentions to challenge long-standing Supreme Court rulings, including the landmark 1982 decision in Plyler v. Doe. This ruling established that undocumented children have the right to public education, declaring Texas' law allowing their exclusion unconstitutional. Roy identified overturning Plyler as one of his "foremost priorities," while Middleton labeled it a "terrible decision" that could be reversed by the current conservative majority on the Supreme Court.

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Historically, state attorney general offices, including Texas', were primarily bureaucratic entities focused on child support enforcement and state agency lawsuits. This changed in the 1990s with significant consumer protection lawsuits against tobacco companies, marking the beginning of a more politically active role for attorneys general. The trend intensified during the Obama administration, as Republican-led states, including Texas under then-Attorney General Greg Abbott, began suing the federal government over executive actions. This shift has continued, with outgoing Attorney General Ken Paxton filing over 100 lawsuits against the Biden administration on various issues.

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Both Roy and Middleton have pledged to continue this trend of partisan litigation. Roy, who previously worked under Paxton, has expressed a desire to challenge various precedents, including Obergefell v. Hodges, which legalized same-sex marriage. Middleton has focused on advancing a religious freedom agenda, citing his support for legislation requiring public schools to display the Ten Commandments, which has faced legal challenges based on constitutional grounds.

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Legal experts, including Georgetown University law professor Steve Vladeck, have raised concerns about the implications of state attorneys general pursuing such aggressive legal strategies. Vladeck criticized the notion that a state attorney general should lead efforts to redefine constitutional interpretations, arguing that their role should be to enforce state law rather than engage in nationwide constitutional battles. He noted the potential for politicization of the office, suggesting that the candidates' ambitions reflect a troubling trend in state legal practices.

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While Roy and Middleton are vocal about their intentions, there is a divide within the Republican caucus regarding the pursuit of cases like Plyler. Some members express reluctance to challenge established precedents, indicating a lack of consensus on the issue. This internal conflict may affect the candidates' ability to implement their proposed legal strategies if elected.

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The upcoming runoff election between Roy and Middleton highlights a significant shift in the role of the Texas Attorney General, with both candidates eager to leverage the office for broader conservative legal objectives. As they seek to overturn established Supreme Court rulings, the implications of their ambitions could reshape the legal landscape in Texas and beyond. The outcome of this election will not only determine the future direction of the Attorney General's office but also signal the ongoing evolution of state-level legal activism in the United States.

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• “We could sit here all night talking about cases that Texas ought to be challenging,” — Chip Roy, U.S. Representative

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• “We have to defeat these atheist precedents that have stopped prayer in school, that have stopped children from going to Christian schools, and frankly, that have stopped what made our country great, which is our faith,” — Mayes Middleton, State Senator

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• “The notion that the attorney general of any one state, even Texas, should be leading the charge in defining what the Constitution means on a nationwide basis, is, to me, the epitome of hubris,” — Steve Vladeck, Law Professor at Georgetown University

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