In lieu of an abstract, here is a brief excerpt of the content:

The CourT in Flux Calvert was followed as chief justice in 1972 by Joe Robert Greenhill, whose association with the Supreme Court dated back to his days as a briefing attorney on the eve of World War II. As a jurist he was regarded as slightly to the left of Calvert and just a touch more willing to invoke equity to see justice done in a case. He was devoted to the institution and keenly interested in recording its history.1 One area in which the Greenhill Court had its work set out for it was in administrative law. Two U.S. Supreme Court decisions in 1970 and 1972 announced a formula for modern due process to be followed by states in administrative hearings.2 Expediency in this area of law was of particular interest to Greenhill; even before joining the Court, he had taken the highly unconventional step of filing a brief in a Texas case as an amicus curiae, even though as special assistant attorney general he was already counsel for one of the parties.3 After the Texas Legislature passed the Administrative Procedure and Texas Register Act in 1975, the Court had the pieces in place to craft a coherent, efficient process for the hearing and appeal of administrative matters .4 Commentary on its effort was generally favorable.5 In the absence of such clear guidelines, however, the Greenhill Court moved cautiously when entering new legal territory. One example was in the real estate decision handed down in Friendswood Development Company v. Smith-Southwest Industries, Inc. (1978).6 Here the Court for the first time imposed liability on the pumper for damage to neighbors resulting from excessive removal of groundwater. Recognizing that it was taking a new step, the Court provided that the principle was to be applied prospectively, from that time on, and was not to be applied to the case at hand, or retroactively. And even then, Greenhill was relieved when the legislature stepped in with an appropriate new statute, which rendered the Court’s decision less activist.7 He did not just wait and hope, however. In addition to his Court duties, Greenhill was also a prolific writer, and sometimes published articles on topics sevenTeen 207 THe CourT in fLux of judicial moment, which could then be disseminated among legislators to call their attention to tatters in the legal fabric that needed to be mended.8 The success of such a method, importantly, hung upon the profound respect that the legislature accorded him. That comity was about to be placed in danger by the increasingly political nature of Supreme Court elections. Texas’s partisan election of justices suffered its most public embarrassment with the election of Don B. Yarbrough to the Supreme Court in 1976. In down-ballot elections, apathetic Texas voters had long elected to office persons with the advantage of well-known names—the long-time state treasurer, Jesse James, was replaced by Warren G. Harding, for example, and it will be recalled that in 1950, Robert W. Calvert unseated an incumbent with a boost from a timely campaign by Calvert Whiskey and the presence on the ballot of state comptroller Robert S. Calvert. In 1976, Yarbrough drew on the name identification of Donald H. Yarborough , a three-time candidate for governor, and Texas’s former U.S. senator, Ralph Yarborough. Don B. Yarbrough was a virtual unknown, only thirtyfour and a onetime staff attorney for an evangelical religious organization, Campus Crusade for Christ.The principal contestant for the Supreme Court seat was the chief justice of the Fourth Court of Civil Appeals, Charles W. Barrow, whom the members of the state bar favored in their traditional straw poll by a vote of 10,186 to 1,741, almost six to one.9 There was no Republican candidate for the seat, so getting the Democratic nomination was tantamount to winning the general election.While Barrow waged a typically dignified campaign, emphasizing his experience and qualifications, Yarbrough ran on his youth and religiosity, and against the influence of the state’s powerful law firms, which, he alleged, dictated results from the benches. He also rode the wave of the post-Watergate era, pitting fresh blood against the “good-ole boys,” including Barrow. “I think someone smoking stodgy old cigars for fifteen years in some San Antonio appellate court,” he said, “should be retired and not elevated to a higher position.”10 Yarbrough also cited the Bible— Chronicles, chapter 19—to promise that he...

Share