An ad from a pro-Ted Cruz super PAC says, “Ted Cruz argued nine cases in front of the Supreme Court, and won.” He did not win all nine cases, as the ad implies.
We’ll get into the details of each of the cases, but here’s the CliffsNotes version: Cruz won two cases, and the rest were either losses or partial victories.
The ad from the super PAC — Keep the Promise I — argues that Cruz is best suited as president to appoint a Supreme Court justice to replace recently deceased Antonin Scalia, a conservative standard-bearer on the court.
“This year, you will have a choice to make,” the ad’s narrator begins. “Will the next president pick a Supreme Court judge who will defend the Constitution? Only one candidate has what it takes because he not only knows the Constitution, he’s defended it. Ted Cruz argued nine cases in front of the Supreme Court, and won.”
Cruz has, in fact, argued nine cases in front of the Supreme Court, all but one as solicitor general of Texas under then Attorney General Greg Abbott. When Cruz ran for the Senate in 2012, those nine cases were more than any practicing lawyer in Texas or any member of Congress, according to the Texas Tribune, which in January did a thorough review of all nine cases.
“There was a degree of serendipity in that, but there was also a concerted effort to seek out and lead conservative fights,” Cruz told the Tribune.
On the campaign trail, Cruz has often highlighted his victories, as he does on his campaign website. And, in fact, when we asked Keep the Promise I about the ad’s claim, it pointed to that page on Cruz’s website. Though the website doesn’t say so, there have been several losses on Cruz’s record too, starting with his first argument before the Supreme Court.
Cruz’s First Appearance
The most lopsided loss came in Cruz’s first argument before the Supreme Court in October 2003. It was a case called Frew v. Hawkins, and involved a states’ rights issue and Medicaid funding. In 1996, Texas reached a settlement — via consent decree — in a class-action lawsuit against the Texas Health and Human Services Commission over allegations that the state failed to improve health care to poor children per Medicaid requirements. The plaintiffs later argued, however, that the state was not living up to its legal commitment. Cruz argued the state was not bound by the consent decree because of state sovereignty rights afforded by the 11th Amendment.
In his book, “A Time for Truth: Reigniting the Promise of America,” Cruz wrote that while he quietly harbored doubts about winning the case, he went into oral arguments feeling confident.
Things did not go well for Cruz, who wrote, “For my thirty minutes in Frew, there was not a single friendly question directed toward me. The justices were ripping me limb from limb. I felt like a chunk of tuna thrown to a school of sharks.”
One of the justices asking pointed questions was Scalia, who pointed out that Texas’ own attorney general was the one who agreed to the consent decree. “Why isn’t that the end of the case?” Scalia asked.
The ensuing ruling in favor of the plaintiffs was unanimous. Among that unanimous group was then Chief Justice William Rehnquist, for whom Cruz had years before served as a law clerk.
Cruz wrote that Rehnquist later joked with him about it. “Well, they say that with your first argument, you should pick a case you can’t lose or you can’t win,” Cruz recalled Rehnquist telling him, with a smile. “Ted … I think you chose wisely.”
Verdict: A loss.
The Stolen Calculator Case
Cruz’s second trip to the Supreme Court went a bit better, but was short of a full victory. The 2004 case, Dretke v. Haley, involved a man, Michael Haley, who was sentenced to 16 years in prison for stealing a calculator from a Texas Wal-Mart.
Although the crime was a misdemeanor that carried a maximum two-year sentence, Haley was charged under the state’s “habitual offender” law due to prior offenses — and that resulted in the longer prison sentence. Several years later, however, a new lawyer discovered that Haley’s criminal record did not meet the standards required to charge someone as a habitual offender.
On behalf of the state, Cruz argued that Haley had waited too long to contest the error.
”You’ve conceded that this sentence is unlawful?” Justice Anthony Kennedy asked during oral arguments.
Cruz said yes.
“Well then, why are you here? Is there some rule that you can’t confess error in your state?” Kennedy asked.
No, Cruz responded, saying that the state was concerned about the precedent it would set for other cases.
“Well, so a man does 15 years so you can vindicate your legal point in some other case?” Kennedy continued. “I just don’t understand why you don’t dismiss this case and move to lower the sentence.”
According to the Texas Tribune, Cruz sensed he did not have the votes to win the case, and switched strategies. Rather than asking the court to back the state’s position, he asked the justices to remand the case back to a lower court. That’s what happened, and Haley was sentenced to time served, meaning he did not have to go back to prison.
“I would regularly talk to my students about the Haley case as a good example of how an advocate can rescue victory from the jaws of defeat,” Cruz said in 2012.
The Medellin Case I & II
Cruz twice argued in front of the Supreme Court in cases concerning Jose Medellin, a Mexican citizen convicted of the rape and murder of two girls, ages 14 and 16, in 1993. Years after his conviction, the International Court of Justice raised the issue that Medellin and others were entitled to the counsel of Mexican diplomats at the time of their arrests, per the Vienna Convention treaty. Even President George W. Bush issued a memo directing states to comply with the International Court of Justice and state courts to review the cases of Mexicans facing the death penalty.
In 2005, the court ruled 5-4 that Medellin had not exhausted his state court appeals, and it sent the case back to a Texas state court. The case came back to the Supreme Court, and in 2007 Cruz again argued on behalf of the state. In a 6-3 decision in 2008, the court sided with Cruz and concluded that the treaty was not binding upon state courts until the treaty is enacted into law by Congress.
Cruz called it, “By any measure the biggest case of my tenure as solicitor general.”
Verdict: A win.
Another case with mixed results, League of United Latin American Citizens v. Perry, came in 2006. The case involved redistricting maps approved by the Republican-controlled state Legislature in 2003. Opponents argued the maps were drawn in a partisan way that violated the U.S. Constitution and the federal Voting Rights Act, resulting in the disenfranchisement of minority voters.
Cruz argued that the framers of the Constitution knew full well that politicians would make political decisions regarding redistricting, and so he argued that those decisions should be left to elected legislatures, not unelected federal judges.
“In other words, of course the legislators who had redrawn Texas’ congressional districts had been political, but there was nothing unconstitutional or illegal about politicians being political,” Cruz wrote in “A Time for Truth.”
Cruz boasted in the book that “[u]ltimately, our argument prevailed.” And, in fact the Supreme Court voted 5-4 that the redistricting plan did not violate the Constitution. However, the court also ruled that one of the districts in the map did violate the federal Voting Rights Act. Bottom line, the state had to redraw the boundaries of that district — a large one — but did not have to redraw the entire map.
Death Sentence for Man with Low IQ
The case of Smith v. Texas in 2007 was over the propriety of a death sentence for LaRoyce Smith, who was convicted in the 1991 shooting and stabbing of a 19-year-old woman. The Supreme Court voted 5-4 to set aside Smith’s death sentence — though not the conviction — because the jury was not given an opportunity to consider his low IQ of 78. In 2008, Smith agreed to a sentence of life in prison.
Death Penalty for Mentally Ill
This was another death penalty case involving a man who suffered from paranoid schizophrenia, Scott Panetti, who was convicted of killing his wife’s parents in 1992. The court was asked to consider whether the state could execute someone who was so mentally ill that he lacked a rational understanding of why he was being executed.
While Cruz argued that Panetti was rational enough to understand that he committed two murders, Justice Kennedy responded, “That’s different from having a rational capacity to understand the nature and justification for the punishment.”
Cruz lost this one in another 5-4 decision, with the court ruling that Panetti could not be executed because he lacked the ability to comprehend his death sentence. The case was sent back to a lower court in Texas to reassess Panetti’s mental state. He remains on death row.
Death Penalty for a Child Rapist
This was actually a Louisiana case involving the death penalty for a man, Patrick Kennedy, convicted of the 1998 rape of his 8-year-old stepdaughter. At issue was whether it was constitutional to extend the death penalty beyond just murder cases, to include child rapists. Cruz argued in support of the state of Louisiana on behalf of Texas and other states that had similar laws. The court ruled 5-4 against Louisiana, finding that the death penalty for raping a child violates the Eighth Amendment prohibition against cruel and unusual punishment.
This was the lone case Cruz argued as a private lawyer, for Morgan, Lewis & Bockius LLP, and it involved a patent infringement case, Global-Tech Appliances v. SEB S.A, related to a deep fryer. Cruz argued in 2011 on behalf of his firm’s client, SEB S.A., that a subsidiary of Global-Tech had violated SEB’s patent. The legal issues in the case were more complex than a simple patent infringement, but the important thing for our purposes is to note that the court voted 8-1 in favor of Cruz’s client.
Verdict: A win.
Cruz’s Supreme Court record doesn’t support the ad’s implication that he “won” the nine cases he argued before the court. Cruz had clear victories in only two.