Steven Wayne Smith and Susan Hunter Smith with their daughters, Allison and Emily, in the Old Supreme Court Room at the Texas Capitol. (photo by al adcock)

By Kevin Priestner

Eight months into his term on the Texas Supreme Court, the office of Justice Steven Wayne Smith remains spartan and unadorned. No art hangs from the paneled walls. The bookshelves are mostly bare. “I’ve been too busy,” he explained.

“People ask me if I’m having a good time and usually I say, ‘No,’” Smith said in his customary wry tone. “It’s not the people or the work, but the workload. I’m happy to be here. It’s an honor to be here. But the truth is, it’s a lot of work.”

Smith, 41, joined the court with no previous judicial experience. His wife, Susan Hunter Smith, an attorney with the Texas Education Agency, says he has worked hard to get up to speed. “He is learning from the other justices and appreciates their collegiality,” she said. “However, one of Steve’s greatest strengths is that he is a self-teacher. Much of what he has done throughout his legal career has been on his own initiative, and he has always done the preparation needed to excel. He’s given more effort to this than to anything else since I’ve known him.”

The court receives 1,200 petitions a year, a small percentage of which it agrees to hear. “There’s always more work to do,” Smith said, “so you basically do what you can, and do the best that you can on the cases you take.”

Smith was elected to an unexpired term in November 2002. In the Republican primary, he defeated Xavier Rodriguez, Gov. Rick Perry’s appointee to the seat vacated by Greg Abbott. (Abbott stepped down in June 2001 to campaign full-time for Texas attorney general.)

By all accounts, Rodriguez, a former partner in Fulbright & Jaworski, L.L.P., who is now a federal district judge in San Antonio, was a popular member of the court. Yet Smith, who in 1998 had unsuccessfully challenged Deborah Hankinson, deemed Rodriguez insufficiently conservative, challenged him in the Republican primary, and won. With little party support, significant opposition from the legal community, and hostility in the press (the Longview News-Journal warned that “electing Smith would be a huge mistake”), Smith handily won the general election, defeating Margaret Mirabal, an appellate judge from Houston, who had out-spent him by a margin of 30 to 1.

Detractors attributed Smith’s victory in the primary to his plain-sounding name. The Weekly Standard pointed to his message (“Smith spent just $9,500, called himself a conservative, and won.”). Smith himself seems inclined to believe his message of judicial restraint was the determining factor in the primary, but concedes the “strength of the Republican ticket” carried him in the general election.

Before the race, Smith was a contentious public figure, and events during the campaign did little to quell that reputation. He is best known for having filed and litigated Hopwood v. Texas, the reverse-discrimination suit brought against the University of Texas School of Law in 1992 on behalf of a group of non-minority applicants denied admission.

In 1996, the U.S. Fifth Circuit Court of Appeals held that no compelling state interest supported the racial preferences used by the law school. Then-Texas Attorney General Dan Morales broadly interpreted the court’s decision to apply to all state universities, an interpretation Smith reflects on as correct as a matter of law, but courageous as a matter of politics.

The U.S. Supreme Court twice refused to hear the appeal and the parties settled in 2001. Earlier this year, however, in a case challenging admissions procedures at the University of Michigan, the court held in Grutter v. Bollinger that the consideration of race was a criterion that could be used.

“I was disappointed,” Smith said of the court’s decision. “We’d all be better off if we quit using race. But I’m on the Texas Supreme Court now, and those battles will have to be fought by somebody else.”

During the campaign, Smith drew scrutiny for two lawsuits he filed.

In the spring of 2002, he challenged, on First Amendment grounds, a provision in the Texas Code of Judicial Conduct that prohibited “a judge or judicial candidate [from making] statements that indicate an opinion on any issue that may be subject to judicial interpretation.” A U.S. district judge, following the U.S. Supreme Court decision in Republican Party of Minnesota v. White, ruled in Smith’s favor.

“I think a legitimate reason to vote for or against somebody is their judicial philosophy,” Smith said.
“I think it’s good to have free speech rights, though a candidate must exercise them prudently.”

During the campaign, he criticized decisions the court handed down regarding school finance and parental notification.

In September 2002, Smith sued Mirabal and her campaign for libel over the circulation of an email in which a former law school classmate of Smith’s called him “a racist and a bigot.” The purpose of the suit, according to Smith’s campaign manager, David Rogers, who was one of the Hopwood plaintiffs, was to say, “These charges are not true, and they’re so not true that we’re willing to go to these lengths to disprove them.”

The Smith campaign pointed to several civil- and voting-rights cases he was involved in before Hopwood. He served as co-counsel for Democratic State Senators Eddie Lucio and Bill Sims in a pair of voting-rights suits brought against a Senate redistricting plan. And he was lead counsel, representing four black plaintiffs, in a suit brought against the Everman Independent School District challenging the district’s at-large elections.

Terral Smith, a former state representative who was legislative director to Gov. George W. Bush, met Smith when they worked on Hopwood. “At our first meeting, he made a point of telling me, ‘I’m not racist. I’m not prejudiced. But I think affirmative action is unconstitutional. I just wanted you to know what kind of person I am,’” he said.

Following the election, Smith filed a non-suit in the libel case, content to have been vindicated in the court of public opinion.

Smith is somewhat perplexed by the controversies that surround him. “I’m not controversial to the people who know me,” he said. “The truth is that your public persona, if that’s the right word, is rarely the face of who you really are.”

Given the controversy surrounding his election, Smith’s reception by the court has been cordial.

“It’s professional,” Smith said. “Everybody knows that they’re here by election, so they understand that the court changes. I’m not the first person to beat somebody and I won’t be the last. All I asked is that I be given the chance to earn their respect.”

A fifth-generation Texan, Smith was raised in Everman, a small town south of Fort Worth. He attended the University of Texas at Arlington, where he received a B.B.A. in finance, becoming the first member of his extended family to graduate from college. Smith attended the University of Texas School of Law, where he took an interest in federal law courses. He graduated with honors in 1986.

After graduation, Smith worked as a bill analyst for the Texas Senate and as a staff attorney, first for the Office of the Texas Secretary of State and then for the Texas Legislative Council. He spent three years at the council, during which he worked on issues such as redistricting and judicial selection. More important for him personally, he met his wife, who was also on the legal staff.

“My judicial philosophy probably comes as much from working at the legislature as from anything,” Smith said. “I developed a real appreciation for what goes into making public policy. The legislature is the policy-making branch. Courts should defer to the legislature, unless there’s a clear constitutional reason not to.”

In 1991, Smith opened a private law practice in Austin. He believes his experience as a sole practitioner — a rare qualification for a Supreme Court justice, despite that 37 percent of Texas lawyers are solos — will prove valuable to his service on the court. He also points to his experiences clerking for U.S. District Judge Terry Means and his position, for several years, as staff attorney for the Chapter 13 bankruptcy trustee serving Austin and Waco.

Smith’s parents still live in the Fort Worth area, where his father is a businessman and his mother works as an in-house accountant for the Texas Southern Baptist Convention. “They’re proud of me,” Smith said with typical understatement. An anecdote he relayed reveals just how modestly he must tout his accomplishments. “My dad read some of the newspaper stories during the primaries and said, ‘That Hopewood [sic] case was a bigger deal than I thought it was,’” Smith said with a laugh.

Public laughter is not something Smith indulges in with frequency. In demeanor, he is laconic and serious. “I’ve never known someone who is more of a straight shooter,” Rogers said. “Steve’s not a politician. When you’re running a campaign, that can be a vice. When you’re serving as a judge, that’s a virtue. Steve’s an umpire — he calls them as he sees them.”

Smith lightens up considerably when he’s around his family. After winning the primary, he took his wife and two daughters on a tour of historic Texas. “Our older daughter, Allison, was studying Texas history in school,” Ms. Smith said, “and our younger daughter, Emily, who is only a grade behind, would be the following year. We went to Gonzales, Goliad, and to see the San Jacinto Monument.”

In January 2003, in anticipation of his formal investiture ceremony, at which U.S. Supreme Court Justice Sandra Day O’Connor would swear-in five members of the Texas Supreme Court, Smith checked out a book from the library for his daughters. Written by O’Connor’s granddaughter, it was called “Meet My Grandmother: She’s a Supreme Court Justice.” Smith also made sure his daughters had the opportunity to have their picture taken with O’Connor before the ceremony.

More recently, he helped them with a family geneaolgy project for school and discovered that the brother of his great-great-grandfather, a man by the name of Henry Clay Geddie, was appointed by the Texas governor in 1923 to hear a single case as a Texas Supreme Court justice.

Smith’s austere office befits his no-nonsense style. What it should not be interpreted as is a sign he doesn’t plan to stick around. He was elected to an unexpired term and must stand for re-election in 2004, a race for which he is already preparing. Smith expects this campaign to be different. “I have the same judicial philosophy, but with experience and a record that I can run on,” he said.

He will also have more support. Texas Lawyer reported in August that at a fundraiser in Dallas this past summer, Smith brought in $40,000 — double the contributions he raised during the entire 2002 campaign.

Smith clearly enjoys serving on the court and takes pride in the importance of the cases it decides.

“Everything you work on here is important,” Smith said. “And the average case is much more intellectually engaging than the cases you generally handle in private practice. The flip side is that you’re not in charge of the case and you don’t have clients you work with and for.

You don’t get the pleasure of guiding them through the legal system.”

Terral Smith, now a lobbyist in Austin, gives Smith high marks for his performance thus far. “I like Steve,” he said. “I think he’s a very intelligent man and I think he’s a good judge.”

Rogers, who now works as a political consultant, predicts a long tenure for Smith on the bench. “I think he’ll be there for a really long time,” he said. “He doesn’t see this as a launching pad. He’ll be Mr. Judicial Restraint.”

Smith is circumspect when discussing his own performance. “Everything I’ve heard about what I’ve been doing here has been positive,” he said, “But I think the reality is that a pretty low bar was set. I’ve got much higher expectations for myself.”