Supreme Court advisory
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Friday, February 11, 2011
CHIEF JUSTICE JOE R. GREENHILL, 1914-2011
Chief Justice Greenhill on Succeeding Robert W. Calvert (Windows Media Player format)
On the “Turning Point” of His Life … and His Burial with “Three-Legged Willie” (Windows Media Player)
Update 08-18-2017: "His War Reminiscences" and "The Joe Greenhill Story" are no longer available on the Texas Supreme Court Historical Society web site. But you can find more information here:
Former Chief Justice Joe Greenhill, who in 25 years on the Texas Supreme Court was the longest-serving† justice in Texas history, died Friday in Austin at 96. His 10 years as chief justice were distinguished by transformation in Texas negligence law, a breakthrough he engineered to allow greater alternative dispute resolution and his championing expansion of the state’s courts of appeals’ jurisdiction to ease years of backlogs at the Texas Court of Criminal Appeals.
“Not only this Court, but the people of Texas have lost a great treasure,” said Chief Justice Wallace B. Jefferson, the fourth person to serve as chief since Greenhill retired in 1982.
will be at 2 p.m. Tuesday at St. David’s Episcopal Church in Austin. A private
burial will be in the Texas State Cemetery.
Until two years ago he kept regular hours at Baker Botts LLP in downtown Austin’s San Jacinto Tower, his 16th-floor office looking down on Lady Bird Lake and offering a sweeping panorama of Southwest Austin and the beginning breaks of the Texas Hill Country beyond. Always at his desk, or nearby, was his trademark cigar, handmade Honduran, mostly a stub, always chewed up. He kept a box of cigars in a cabinet behind his desk. His remarkable legal and judicial career moved from defending Texas in a desegregation challenge to the University of Texas School of Law – a U.S. Supreme Court decision he lost that led to the Court’s landmark public school-desegregation order in Brown v. Topeka Board of Education – to helping to dedicate a new building for Texas Southern University’s Thurgood Marshall School of Law. Thurgood Marshall, later the first African-American justice on the U.S. Supreme Court, was his opponent in the law school-desegregation case.
As chief justice from October 1972 until October 1982, Joe Robert Greenhill considered his proudest accomplishments to be his success in passing a constitutional amendment to give Texas’ 14 intermediate appellate courts criminal jurisdiction and in changing restrictive laws that discouraged arbitration and mediation to resolve legal disputes in Texas.
He later worried that arbitration had gone too far.
Ultimately history would call him a good judge, he said before his death, one who worked for stability in the law. “Generally speaking,” he said, “people who draw up contracts are entitled to have the law followed.”
“The modern Texas judiciary was born in large part from Joe Greenhill’s great efforts,” Jefferson said. “I owe him, every Texas judge owes him and the people of Texas owe him more than mere gratitude can measure.”
Former Chief Justice Thomas R. Phillips called Greenhill a giant of Texas law. “Despite his brilliant academic record and his success in both public service and private practice, he was always modest and approachable,” Phillips said.
“After leaving the Court, he helped open the Austin office of Baker Botts where he mentored a generation of young lawyers.”
Survivors include his wife, Martha, whom he married in 1940 in Tyler, and sons Joe R. Greenhill Jr. of Austin and Bill Greenhill of Fort Worth.
Joe Greenhill, born in Houston on
July 14, 1914, was educated in business and law at the University of
Texas, where he was named to Phi Beta Kappa as an undergraduate and graduated
at the top of his law-school class. He was honored as a distinguished alumnus
of both the business and law schools and was awarded an honorary doctor of laws
by Southern Methodist University.
He was the first briefing attorney to become a justice and the only briefing attorney to serve twice as a law clerk when he returned to the Court after service in World War II.
“It was like having an historical figure on the Court,” said former Justice Scott Brister, who clerked for Greenhill in 1980-81. “He had been on the Court for so long and had written so much of the law in Texas.”
After Greenhill’s graduation in 1939 from UT’s law school and following a stint as briefing attorney, he interrupted his legal career to join the U.S. Navy at the beginning of World War II. He worked in intelligence, then as executive officer on a mine sweeper, the U.S.S. Control, in the Pacific.
After the war he returned to clerk for the Court, then became first assistant attorney general. In that role he argued Sweatt v. Painter before the U.S. Supreme Court, the challenge by Hemann Marion Sweatt, a black postal worker, to gain admission in 1946 to UT Law School. The issue was not, as Greenhill later told oral biographer H.W. Brands, whether the state provided unequal and separate facilities. For Greenhill, the issue was one of principle: Why would the 14th Amendment, which allowed states to segregate schools in 1868, prohibit that same practice in 1946?
The state, which provided no legal training for blacks, decided to create a separate law school for blacks. Legislators, he recalled, “wanted an instant equal, separate school.”
The U.S. Supreme Court, though, found that Sweatt’s segregated law school was substantially unequal and ordered his admission to the University of Texas.
“He took me to lunch shortly after I became chief in 2004,” Jefferson said. “He wanted me to know that his principled stance in Sweatt took nothing away from his admiration for Thurgood Marshall – and his pride in my promotion as Chief Justice.”
Six years later, after Texas lost that case, Greenhill recalled
that he visited the Supreme Court in Washington, D.C., with his son, Bill, the
day the Court issued its decision in Brown v. Board of Education.
Thurgood Marshall, once an opponent, now the elated victor in U.S. history’s
greatest civil-rights case, swept Bill onto his shoulders and ran him through
the white marbled Great Hall of the Court.
Twenty-three years later Greenhill, then chief justice, would honor then-Justice Marshall in remarks at the dedication of the Thurgood Marshall School of Law. Greenhill said he talked Marshall into permitting the school to be named for him when Marshall at first said no.
“‘I don’t want my name on any segregated school,’” Greenhill remembered Marshall objecting.
“I pointed out to him that the law school was something like 66 percent African-American,” he said. “And he said OK.”
After Greenhill’s retirement from the Court, the Thurgood Marshall Law Review dedicated a special issue to him in 1983.
In 10 years as chief justice, Greenhill, then with power to appoint Board of Pardons and Paroles members, appointed a black woman – a first.
And at a time when women were beginning to enter law practice in significant numbers, Greenhill was ahead of his time, said one former law clerk, Sally Miller of Austin. “Most importantly,” she said, “I recall his hiring women law clerks back when women were still a relatively ‘new thing.’”
Court records show Chief Justice Greenhill had women law clerks on his staff every year from 1976 until his retirement.
Greenhill, whose mother was the first state social-work director when she was appointed in 1931, reared him in a Houston home in which she took in working women as boarders to help them make ends meet. “I grew up in an environment of working women,” he said. “It seemed natural for me that if they were qualified to do the work they were just as capable as man to be law clerks.”
But his greatest accomplishment as chief justice, he said, was passing a constitutional amendment giving the Texas courts of civil appeals jurisdiction over criminal cases to relieve a backlog at the Court of Criminal Appeals. The three-judge Court of Criminal Appeals, then the only criminal appellate court in Texas, labored on a caseload long out of balance.
The amendment also expanded the Court of Criminal Appeals to nine judges.
To pass it, his strategy was to do almost nothing after the Legislature approved the ballot proposal. “I got it passed by refusing to debate it,” he said. “People opposing something can find more reasons not to change than you can imagine.”
He also knew the Federal Communications Commission’s equal-time provision would work against the amendment proposal. If he spoke on television for it, the station would be required to give equal time to opponents.
Greenhill helped found the Austin law firm now known as Graves Dougherty Heron & Moody in 1950 and left it when he joined the Court in 1957, appointed by his former boss, Price Daniel. Daniel, elected governor after serving as attorney general, was a leader of the Texas Democratic Party’s conservative wing.
“Everyone presumed I would also be very conservative,” Greenhill said.
He drew Sarah T. Hughes as an opponent, then a Dallas judge (and who was later remembered as the federal judge who gave the presidential oath to Lyndon B. Johnson aboard Air Force One after President Kennedy’s assassination in 1963).
“At that point,” Greenhill said of her challenge, “she was the liberal and I was the conservative.”
He defeated Hughes in that race. But the political winds changed when he ran to succeed Robert W. Calvert as chief justice in 1972. Then he would draw opposition from what he called the far right and insurance companies.
As chief justice he worked for a “more level playing field” in negligence law, bringing Texas in line with states that adopted a system that would account for comparative fault among the parties involved in an accident and measure the risk an injured person assumed before an accident.
Greenhill, whose great-grandfather served as attorney general in Ireland and later on the Irish Supreme Court, lived with his mother, who reared him as single parent from the time he was 2. He joined the U.S. Navy after law-school graduation and his clerkship on the Court he would lead three decades later.
He clerked again for the Court after the war, making him the only briefing attorney ever to serve separate clerkships.
On a table in his Baker Botts’ office were seven volumes of bound briefing in the Sweatt case. In a cabinet behind the table he pulled the volume of the Thurgood Marshall Law Review dedicated to him, proudly showing the symbolic end of perhaps his most famous case.
Next to that, on a credenza behind his desk, sat a chewed-up Honduran cigar.
† Chief Justice Greenhill served 25 years and 21 days. The second long-serving justice, who, as Greenhill, served as chief justice for part of his tenure, was Reuben Gaines.