On March 11, 2019, President Trump nominated Jeffrey V. Brown to the United States District Court for the Southern District of Texas for the seat previously held by Judge Melinda Harmon. Brown is currently a justice on the Supreme Court of Texas, a position he has held since 2013. He previously acted as a state court judge for the Texas Fourteenth Court of Appeals and 55th District Court. He has been a member of the conservative Federalist Society since 1997.
- As a state court judge, Brown has consistently ruled against marriage equality. In June 2017, Brown joined the Texas Supreme Court majority in Pidgeon v. Turner, which held that cities in Texas could defy Obergefell v. Hodges and deny married same-sex couples the rights of marriage. The opinion stated that Obergefell “did not hold that states must provide the same publicly funded benefits to all married persons, and . . . it did not hold that the Texas DOMAs are unconstitutional.”
- Brown also expressed his personal disdain for Obergefell’s holding. In In re State of Texas, the state attorney general challenged a court order blocking enforcement of a Texas law stating that marriage in Texas can only be between one man and one woman. The Texas Supreme Court dismissed the attorney general’s petition as moot after Obergefell. Brown concurred, stating that he “cannot dispute” Obergefell’s binding holding, but emphasized his opinion that marriage was historically limited to opposite-sex couples for “all of pre-21st-century American history and all of Western Civilization from the beginning of Christendom to the modern day.”
- After Houston’s city council passed an ordinance that prohibited discrimination based on sexual orientation and gender identity, Brown joined an opinion suspending the ordinance and forcing it to go to a popular vote. Ultimately, the ordinance failed, leaving LGBTQ Houstonians without legal protections against discrimination.
- Brown joined a majority opinion that restricted same-sex sexual harassment claims. As one author noted, the opinion “totally misunderstands homosexuality.”
Women’s Health Care
- In a speech to the Tea Party, Brown bragged about his involvement in increasing restrictions placed upon minors seeking abortion care in Texas. After the legislature enacted constitutionally-required bypass procedures under the state’s parental consent law, the Texas Supreme Court unanimously amended the rules to allow judges to deny a minor’s application for bypass by refusing to take any action on the petition. Previously, failure to rule on a minor’s application amounted to an automatic granting. By inserting the “denial” language, the Texas Supreme Court “creat[ed] substantive law.”
- In a 2017 speech, Brown referred to IUDs and emergency contraceptives as “potentially life-terminating drugs and devices” and “abortifacients.”
- Brown tweeted quotes from dissenting opinions in Roe v. Wade on the 40th and 43rd anniversaries of the decision. From Justice White’s dissent, which he describes as “eloquent and pithy,” Brown quoted, three times, “I find nothing in the language or history of the Constitution to support the Court’s judgment.” Brown also linked to what he described as Justice Rehnquist’s “elegant originalist” dissent.
- On Brown’s Supreme Court campaign website, a now-deleted page detailed Texas Right to Life’s endorsement of his campaign. His statement, which was blacked out on the webpage, said: “I’m proud and honored to receive the endorsement of the largest pro-life organization in Texas. Texas Right to Life is one of the strongest grassroots organizations of its kind in the country. They are devoted to championing life at every stage, and this is a cause I applaud and support.”
Workers and Consumers
- As a trial judge, Brown barred a lawsuit brought by a former Navy officer who had developed mesothelioma from asbestos products. He held that a statute that limited certain corporations’ liability for asbestos-related claims applied retroactively. Brown was overruled by the Texas Supreme Court. Texas Civil Justice League, an anti-consumer and anti-worker protections organization, filed an amicus curiae brief in support of affirming the circuit court and Brown’s trial court decisions. Brown delivered a campaign speech to this group in 2018.
- On the Texas Supreme Court, Brown voted to overturn a jury verdict for a railroad employee who contracted West Nile Virus after the railroad company, which knew about the existence of mosquitoes infected with the virus in the area, failed to adequately warn workers or provide mosquito repellant. Against a strong dissent, the majority held that common law doctrine about wild animals applied, eliminating the railroad’s duty to the employee.
- Brown has delivered speeches to organizations, backed by the wealthy and powerful, that fight to keep Americans from holding corporations accountable. In 2017 he spoke to the Civil Justice Reform Group, a secretive funder of corporate-backed anti-consumer and anti-worker associations.
- As a judge for Texas’s Fourteenth Court of Appeals, Brown wrote an opinion allowing the prosecutor to comment in court about a criminal defendant’s silence in response to police questioning, holding it did not violate the right against self-incrimination. Although this decision was ultimately affirmed 5-4 in the U.S. Supreme Court, Justice Breyer in dissent wrote that, “to allow [the prosecutor to] comment on silence directly or indirectly can compel an individual to act as ‘a witness against himself’—very much what the Fifth Amendment forbids.”
- On the Texas Supreme Court, Brown authored an opinion allowing evidence found after an illegal police seizure to be introduced at a civil-forfeiture proceeding. As a matter of first impression, the Court held that the evidentiary exclusionary rule does not apply in civil-forfeiture cases.
- Brown, while on the Fourteenth Court of Appeals, wrote an opinion on the Fourth Amendment’s right against unreasonable searches and seizures that was reversed. Brown had determined that the defendant was not detained when the police officer had partially blocked the defendant’s vehicle with his car, turned his car’s spotlight on, and demanded identification in a loud voice. The Texas Court of Criminal Appeals disagreed, finding that the defendant had been detained because a reasonable person in his position would not have felt free to terminate the police encounter.