American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Fifth Circuit
Click below to download more research data for Don Willett.
* You have successfully registered your email address.
Don Willett is outspoken regarding his own faith and worldview. He keeps his own YouTube channel, where he discusses the free expression of religion.[1] Judge Don Willett includes a video showing him reading a bible to a child.[2] Judge Willett has a Twitter account where he has posted such things as Micah 6:8,[3] and a post about his daughter reciting the Christmas story from Luke.[4]
However, Don Willett backed down when he was asked about his conservative views, including pro-life and pro-family statements: Willett described himself as “pro-life, pro-faith, pro-family, pro-liberty, pro-Second Amendment, pro-private property rights and pro-limited government.”[5] However, during his confirmation hearing, “Willett tried to brush off this statement, saying he was using terms like ‘pro-life’ and ‘pro-family’ to characterize his supporters, not himself, and that these views would have no bearing on his judicial work. When Sen. Whitehouse asked why ‘pro-life’ and ‘pro-family’ groups would spend time and money supporting him if these things truly would have no effect on his rulings, Willett was unable to respond.”[6]
[1] Justice Don Willett: Faith and Liberty, YouTube, (May 1, 2012), https://www.youtube.com/watch?v=BosQ1SzfCgQ, at 00:20-04:08.
[2] Justice Don Willett Commercial: Conservative, YouTube, (May 7, 2012), https://www.youtube.com/watch?v=WJQFioXc4Mg, at: 00:26-29.
[3] Judge Don Willett, 2018 to-do list, Twitter, (January 1, 2018), https://twitter.com/justiceWillett.
[4] Judge Don Willett, Post, Twitter, (January 1, 2018), https://twitter.com/justiceWillett.
[5] Chuck Lindell, Supreme Court challengers say court is too pro-business, Austin American-Statesman (September 24, 2012), https://www.statesman.com/story/news/2012/09/24/supreme-court-challengers-say-court-is-too-pro-business/9860913007/.
[6] NARAL, Don Willett, Pro-Choice America, (2017), https://www.prochoiceamerica.org/wp-content/uploads/2017/12/Don-Willett_NARAL.pdf (emphasis added).
Writing for the majority in Collins v. Mnuchin, Judge Willett called the separation of powers the most essential attribute of our Constitution.[7] Judge Willett stated that the separation of powers implies that the branches “behave not as willing partners but as wary rivals.”[8]
Willett has stated that when Congress creates agencies, it is still constrained at all times by the separation of powers.[9]
The court’s opinion in Comm’n of Texas v. Norwood, in which Willett joined, called the principle of separation of powers “foundational for federal and state governments in this country and firmly embedded in our nation’s history.”[10] The Texas Supreme Court held that “exceptions to the constitutionally mandated separation of powers are never to be implied in the least; they must be ‘expressly permitted’ by the Constitution itself.”[11]
The court also held that a court that lacks jurisdiction cannot “proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case.” The court reasoned allowing other courts to engage in this activity would offend the “fundamental principles of separation of powers.”[12] Judge Willett indicated he believes that applying the doctrine of judicial restraint means appellate courts should apply the “best and narrowest grounds available.”[13]
Judge Willett has changed his mind on a major case, writing “I have had a judicial change of heart . . . Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”[14]
[7] Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019), http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf.
[8] Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019), http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf.
[9] Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019), http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf.
[10] Fin. Comm’n of Tex. V. Norwood, 418 S.W.3d 566, 569 (Tex. 2013), https://law.justia.com/cases/texas/supreme-court/2013/10-0121-0.html.
[11] Fin. Comm’n of Tex. V. Norwood, 418 S.W.3d 566, 569 (Tex. 2013), https://www.txcourts.gov/media/819902/OpinionsFY2013.pdf.
[12] Fin. Comm’n of Tex. V. Norwood, 418 S.W.3d 566 at 569 (Tex. 2013), https://www.txcourts.gov/media/819902/OpinionsFY2013.pdf.
[13] United States v. Patel, LEXIS 32732 (Nov. 28, 2022), https://cases.justia.com/federal/appellate-courts/ca5/22-10021/22-10021-2022-11-28.pdf?ts=1669660221.
[14] Garrett Epps, A Stunning Vote Reversal in a Controversial First Amendment Case, The Atlantic (Dec. 18, 2019), https://www.theatlantic.com/ideas/archive/2019/12/don-Willetts-deray-mckesson-free-speech/603772/ (emphasis added).
Judge Don Willett argued to keep the words “under God” in the pledge of allegiance, writing an amicus brief with Sen. Ted Cruz in the case Elk Grove Unified School District v. Newdown, 542 U.S. 1 (2004).[15]
In a 2012 campaign advertisement, Willett stated, “there are those who want to purge every vestige of religion from public life, but we always have to be on guard to protect the free expression of religion and religious liberty and religious devotion.”[16]
While serving in the Texas attorney general office, Willett defended Texas’s ability to display a Ten Commandments monument at the Texas Capitol.[17]
After winning the case to protect the Ten Commandments display at the Texas Capitol, Don Willett praised the ruling, saying “and thankfully generations of Texans will be able to go to the capitol and look at our Ten Commandments monument and appreciate the role it has played in our civilization and our system of laws.”[18]
In Matthews v. Kountze Independent School District, Willett supported cheerleaders’ ability to display banners with religious signs and language during school events.[19] Writing in a separate concurring opinion, Willett stated: “It is unclear from this record which claims are live, and consequently, what this case means for religious liberty-Texans’ ‘natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. . . But answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution.”[20]
[15] Justice Don Willett – Nominee to the U.S. Court of Appeals for the Fifth Circuit, The Vetting Room, (2017, date uncertain), https://vettingroom.org/2017/11/15/justice-don-Willett/#ftnt6, referencing Brief for the State of Texas, et al. as Amicus Curiae supporting Petitioner, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).
[16] Don Willett, Justice Don Willett: Faith and Liberty, YouTube, 0:00:10, https://www.youtube.com/watch?v=BosQ1SzfCgQ (emphasis added).
[17] “Potential Nominee Profile: Don Willett, Edith Roberts, SCOTUSblog (June 29, 2018), https://www.scotusblog.com/2018/06/potential-nominee-profile-don-Willett/.
[18] Don Willett, Justice Don Willett: Faith and Liberty, YouTube, 0:00:40, https://www.youtube.com/watch?v=BosQ1SzfCgQ.
[19] Potential Nominee Profile: Don Willett, Edith Roberts, SCOTUSblog (June 29, 2018), https://www.scotusblog.com/2018/06/potential-nominee-profile-don-Willett/.
[20] Potential Nominee Profile: Don Willett, Edith Roberts, SCOTUSblog (June 29, 2018), https://www.scotusblog.com/2018/06/potential-nominee-profile-don-Willett/ (emphasis added).
In a campaign ad, Willett touted his respect for religious freedom “Religious freedom is the first freedom. Its not a luxury, its not a hobby, it goes to the core of who we are as Americans. There are those who want to purge every vestige of religion from public life, so we have to always be on guard to protect the free expression of religion and religious devotion.”[21]
Willett defended a religious organization from an HHS Rule that required healthcare providers to perform abortions and gender reassignment surgeries. In his opinion in Franciscan All., Inc. v. Becerra, Willett said, “To obtain a permanent injunction, Franciscan Alliance had to show that ‘the failure to grant the injunction [would] result in irreparable injury.’ We have recognized that the loss of freedoms guaranteed by the First Amendment, RLUIPA, and RFRA all constitute per se irreparable harm. Again, the ACLU gives us no reason to rethink those precedents. And even if it did, the rule of orderliness prevents us from doing so.”[22]
Willett joined an opinion defending two boys from being excluded from extracurricular activities due to their religiously motivated hairstyles. Because this hairstyle violated dress standards, the school district prevented the boys from attending after school activities. The court upheld the grant of injunction.[23]
In 2020, an arsonist burned down a church and the city then removed an injunction protecting the church. The city justified its actions on the grounds that the church was destroyed and thus no longer required the injunction. Willett condemned the city’s actions. He said, “The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime's depravity, the City seized advantage, insisting that the Church's First Amendment claim necessarily went up in smoke when the church did: ‘the Church was destroyed from an arson fire . . . making the permanent injunction claim moot.’ This argument is shameful.”[24]
When a Baptist minister brought suit over his dismissal from church leadership, Willett joined the dissent in defending church autonomy from government interference.
The opinion states, “If religious liberty under our Constitution means anything, it surely means at least this much: that the government may not interfere in an internal dispute over who should lead a church—and especially not when the dispute is due to conflicting visions about the growth of the church. But it turns out that nothing is sacred, for that is precisely what we are doing here.”[25]
The brief concluded, “In short, protecting religious institutions from government interference is not just the point of the church autonomy doctrine that the Supreme Court has recognized for nearly 150 years—it is foundational to who we are as Americans.”[26]
While on the Texas Supreme Court, Willett joined the opinion for Pleasant Glade Assembly of God v. Schubert. A girl and her parents sued a church for mental, emotional, and psychological injuries allegedly caused by a church’s “laying on of hands.” The court held that the “laying of hands” done by the church was protected under the First Amendment. The opinion stated, “The Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in "laying hands" are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute. Accordingly, we reverse the court of appeals' judgment and dismiss the case.”[27]
[21]Justice Don Willett: Faith and Liberty, Don Willett Texas Supreme Court (May 1 2012), https://www.youtube.com/watch?v=BosQ1SzfCgQ, at 0:00-0:20 (emphasis added).
[22] Franciscan All., Inc. v. Becerra, 47 F.4th 368, 19-20 (5th Cir. 2022), https://www.ca5.uscourts.gov/opinions/pub/21/21-11174-CV0.pdf (emphasis added).
[23] Gonzales v. Mathis Indep. Sch. Dist., 978 F.3d 291 (5th Cir. 2020), https://www.ca5.uscourts.gov/opinions/pub/19/19-40776-CV0.pdf.
[24] First Pentecostal Church of Holly Springs v. City of Holly Springs, 959 F.3d 669, 670 (5th Cir. 2020) https://www.ca5.uscourts.gov/opinions/unpub/20/20-60399.pdf (emphasis added).
[25] McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 980 F.3d 1066, 1067 (5th Cir. 2020), https://www.ca5.uscourts.gov/opinions/pub/19/19-60293-CV1.pdf. (emphasis added).
[26] McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 980 F.3d 1066, 1073 (5th Cir. 2020), https://www.ca5.uscourts.gov/opinions/pub/19/19-60293-CV1.pdf. (emphasis added).
[27] Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 13 (Tex. 2008), https://search.txcourts.gov/historical/2008/jun/050916.pdf. (emphasis added).
When pressed if Roe was settled law, rather than calling it settled law, Willett appeared to dodge the question. He responded, “Roe v. Wade is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. I will follow it fully, fairly, and faithfully with zero hesitation.”[28]
Senator Feinstein questioned Willett on a campaign statement for a judicial election where he identified himself as pro-life. Willett bucked the question by attributing his statement to merely repeating the views of others. He said, “I was describing the state and national conservative leaders and grassroots activists who supported my campaign, not myself.”[29]
Willett wrote a powerful dissent condemning second trimester abortions as “barbaric.” The dissent began, “Civilized society has long recognized that death and dignity should coincide. It’s why we dress up for funerals and venerate the heroes of hospice and palliative care. It’s why we derive comfort when we hear that a loved one died peacefully in their sleep; the loss, no less sorrowful, is leavened with solace knowing that someone dear to us didn’t suffer. It’s why babies born pre-viability receive medication to ease their passing. Human dignity should prevail even when—especially when—human life slips away.”[30]
He added, “Rhetoric must not befog reason. The majority uses gauzy, evasive language to minimize the reality of D&E and to maximize, but never quantify, the risks of various “fetal-demise” techniques. The majority then relies on this imprecision to evade exacting analysis. But without fully understanding the procedures at issue, one cannot fully understand the State’s asserted interest in reducing the barbarism of D&E on a living unborn child by requiring more humane alternatives—alternatives Plaintiffs have long used, and touted as safe, in their own provision of abortion services.”[31] Willett concludes that, “The majority opinion pits the rights of those seeking abortion against the State’s legitimate interest in respecting the dignity of fetal life, cheering the former and jeering the latter. But SB8 doesn’t present this false choice. It shutters no clinics who offer D&E abortions; it deters no women who seek them. The lone thing SB8 seeks to ban is a particular form of brutality: dismembering a living unborn child.”[32]
[28] S. Questions for Answer, p. 2. Questions from Senator Feinstein. Question #3b (emphasis added).
[29] S. Questions for Answer, p. 4. Questions from Senator Feinstein. Question #7b. (emphasis added).
[30] Whole Woman's Health v. Paxton, 978 F.3d 896, 912 (5th Cir. 2020) PDF Link here, PDF p. 23 (emphasis added).
[31] Whole Woman's Health v. Paxton, 978 F.3d 896, 913 (5th Cir. 2020), http://www.ca5.uscourts.gov/opinions/pub/17/17-51060-CV2.pdf#page=23, PDF p. 25 (emphasis added).
[32] Whole Woman's Health v. Paxton, 978 F.3d 896, 931 (5th Cir. 2020), http://www.ca5.uscourts.gov/opinions/pub/17/17-51060-CV2.pdf#page=23, PDF p. 61 (emphasis added).
Willett testified before the senate that Obergefell is controlling precedent. He was asked similar questions regarding Obergfell from several Senators and repeated the same canned response. He said, “Obergefell v. Hodges is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. I will follow it fully, fairly, and faithfully with zero hesitation.”[33]
In 2015, Willett was a prolific Twitter user and mocked the Obergefell case a day after oral arguments. He tweeted, “I could support a constitutional right to marry bacon.”[34] Senator Durbin questioned Willett on this tweet and Willett responded, “The bacon-related tweet was the day after oral argument in Obergefell v. Hodges. As I testified, I was earnestly attempting to inject a measure of levity amid a divisive time of national polarization. The tweet at the time was taken in that lighthearted spirit, by those spanning the political spectrum.”[35] Willett provided a quote from a transgender former intern defending him. The colleague wrote “I legally changed my name and gender in March of this year, and Justice Willett has been a supportive friend and mentor regardless of my gender. Justice Willett accepts all individuals for who they are and cherishes his friendships in the LGBTQ community. For me, he has gone the extra step to encourage me to make a difference, not just a living. He is precisely the sort of judge all Americans should want on the federal bench.”[36]
In a 2016 concurrence, Justice Willett wrote an opinion that applied Obergefell but delayed its application for 45 days because of a Texas law requiring 45 days’ notice when a state law is challenged on constitutional grounds.[37] The opinion read, “This was an invalid invalidation. No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general's statutory opportunity—and constitutional duty—to defend it.”[38]
Willett Joined an opinion which held that denying sexual reassignment surgery to an inmate does not constitute cruel and unusual punishment.[39]
[33] S. Questions for Answer, p. 2. Questions from Senator Feinstein. Question 3c; S. Questions for Answer, p. 24. Questions from Senator Durbin. Question 14a; S. Questions for Answer, p. 24. Questions from Senator Durbin. Question 14b.
[34] S. Questions for Answer, p. 18. Questions from Senator Durbin. Question 5c.
[35] S. Questions for Answer, p. 18. Questions from Senator Durbin. Question 5c (emphasis added).
[36] S. Questions for Answer, p. 18. Questions from Senator Durbin. Question 5b (emphasis added).
[37] See In re State, 489 S.W.3d 454 (Tex. 2016), https://www.leagle.com/decision/intxco20160415686 (emphasis added).
[38] See In re State, 489 S.W.3d 454 (Tex. 2016), https://www.leagle.com/decision/intxco20160415686.
(emphasis added).
[39] Williams v. Kelly, 818 F. App'x 353, 2 (5th Cir. 2020), https://www.ca5.uscourts.gov/opinions/unpub/18/18-31066.0.pdf.
Judge Willett sided with the majority in Cargill v. Garland, protecting gun rights. In the opinion, the Fifth Circuit concluded that bump stocks do not fall under the Gun Control Act of 1968 banning the ownership of machineguns.[40] The majority stated the “rule of lenity would still require us to interpret the statute against imposing criminal liability” and even the definition of “machinegun” is vague in the Gun Control Act of 1968.[41]
Judge Willett dissented in Mance v. Sessions, which upheld the constitutionality of state laws that require gun dealers to only sell to residents of their state. In the dissent he joined, Judge Willett agreed with applying “a test rooted in the Second Amendment’s text and history – as required under Heller and McDonald – rather than a balancing test like strict or intermediate scrutiny.[42]
Willett agreed with using a two-prong test when assessing Second Amendment cases, “the first prong of which generally asks whether the challenged regulation burdens conduct that falls within the scope of the Second Amendment as historically understood.”[43]
In Judge Willett’s dissent in Mance v. Sessions, he reaffirms his strong support for the Second Amendment. Willett stated the Second Amendment is “spurned as peripheral, despite being just as fundamental as the First Amendment. It is snubbed as anachronistic, despite being just as enduring as the Fourth Amendment. It is scorned as fringe, despite being just as enumerated as the other Bill of Rights guarantees.”[44] Willett argued in his dissent that the “Second Amendment is neither second class, nor second rate, nor second tier. The ‘right of the people to keep and bear Arms’ has no need of penumbras or emanations. It’s right there, 27 words enshrined for 227 years.”[45]
[40] Cargill v. Garland, 57 F.4th 447, 452 (5th Cir. 2023), https://www.supremecourt.gov/DocketPDF/22/22-976/263014/20230406221131265_Garland%20v.%20Cargill%20petition.pdf.
[41] Cargill v. Garland, 57 F.4th 447, 450 (5th Cir. 2023) https://www.supremecourt.gov/DocketPDF/22/22-976/263014/20230406221131265_Garland%20v.%20Cargill%20petition.pdf.
[42] Mance v. Sessions, 896 F.3d 390, 394 (5th Cir. 2018), https://static.reuters.com/resources/media/editorial/20181003/Mance%20v%20Sessions.pdf, (emphasis added).
[43] Mance v. Sessions, 896 F.3d 390, 394 (5th Cir. 2018), https://static.reuters.com/resources/media/editorial/20181003/Mance%20v%20Sessions.pdf.
[44] Mance v. Sessions, 896 F.3d 390, 396 (5th Cir. 2018), https://static.reuters.com/resources/media/editorial/20181003/Mance%20v%20Sessions.pdf. (emphasis added).
[45] Mance v. Sessions, 896 F.3d 390, 394 (5th Cir. 2018), https://static.reuters.com/resources/media/editorial/20181003/Mance%20v%20Sessions.pdf (emphasis added).
Judge Don Willett joined dissent in a case involving equal education in Mississippi. In the case of Williams on behalf of J.E. v. Reeves, 981 F.3d 437, 438 (5th Cir. 2020), four mothers, each representing their own minor child, complained that their children were not receiving an equal education.[46] This case is apparently ongoing, and Judge Willett joined with a dissent which has brought him criticism.[47]
The mothers identified themselves as low-income African American women whose children were being harmed by lack of educational opportunities,[48] In Mississippi federal court, the mothers asked that the court find that Mississippi’s constitution allowed for a “grave disparity” in education of students who attend either predominantly white or predominantly black schools.[49] While Mississippi’s constitution used to require “uniform” public schools, an amendment had removed that requirement.[50] These women felt that the change to Mississippi’s constitution violated the Readmission Act, an act which readmitted Mississippi into Congress after the Civil War on the condition that Mississippi never amend their constitution to “deprive any citizen or class of citizens . . . the school rights and privileges secured by the Constitution of [Mississippi].”[51] The defendant—the governor of Mississippi—moved to dismiss, citing the Eleventh Amendment and stating that states are immune from being prosecuted in federal court by their own citizens.[52] The district court agreed.[53] Plaintiffs appealed to the Fifth Circuit, where a panel of three judges (not including Judge Willett) focused on the degree of the disparity between school systems, some of which have buildings that are failing and have no extra-curricular activities.[54] The three-judge panel remanded the case, affirming in part and vacating and remanding in part.[55] The panel ruled that although sovereign immunity did protect the state to a degree, there was value in determining whether the state constitution did in fact comply with federal law.[56] The panel discussed the importance of federal supremacy as well, noting that there was a role for the federal courts to hold states accountable to federal law.[57]
Judge Don Willett has a school named after him: Willett Elementary. Construction began in 2021 on Willett Elementary School to honor Judge Willett.[58] One person who celebrated the construction of the new school mentioned that Judge Willett was the high school salutatorian in 1984.[59] The author said that Judge Willett was raised by a single mom who never finished high school, and who was “heroic.”[60]
[46] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[47] Elliot Mincberg, Trump Judges Try to Dismiss Case Concerning Significant Education Disparities Harming African American Schoolchildren in Mississippi: Confirmed Judges, Confirmed Fears, People For the American Way, (December 11, 2020), https://www.pfaw.org/blog-posts/trump-judges-try-to-dismiss-case-concerning-significant-education-disparities-harming-african-american-schoolchildren-in-mississippi-confirmed-judges-confirmed-fears/ (emphasis added).
[48] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[49] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf, (emphasis added).
[50] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *1-2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[51] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *1-2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[52] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *2 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[53] Williams on Behalf of J.E. v. Bryant, No. 3:17-CV-404-WHB-LRA, 2018 WL 8996382, at *3-4 (S.D. Miss. Mar. 28, 2018), amended, No. 3:17-CV-404-WHB-LRA, 2019 WL 3757948 (S.D. Miss. Jan. 4, 2019), aff'd in part, vacated in part, remanded sub nom. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729 (5th Cir. 2020), https://www.splcenter.org/sites/default/files/documents/031_-_order_granting_mtd.pdf.
[54] Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 733 (5th Cir. 2020), https://www.supremecourt.gov/DocketPDF/20/20A126/165898/20210111150611808_use%20appendix.pdf.
[55] Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 741 (5th Cir. 2020), https://www.supremecourt.gov/DocketPDF/20/20A126/165898/20210111150611808_use%20appendix.pdf.
[56] Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 735-39 (5th Cir. 2020), https://www.supremecourt.gov/DocketPDF/20/20A126/165898/20210111150611808_use%20appendix.pdf (emphasis added).
[57] Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 737 (5th Cir. 2020), https://www.supremecourt.gov/DocketPDF/20/20A126/165898/20210111150611808_use%20appendix.pdf.
[58] Willett Elementary Set to Break Ground; Branch Named Principal for Fall 2022, Forney ISD, (Approx. 2021), https://www.forneyisd.net/site/default.aspx?PageType=3&DomainID=4&ModuleInstanceID=128&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108&RenderLoc=0&FlexDataID=30424&PageID=1.
[59] Willett Elementary Set to Break Ground; Branch Named Principal for Fall 2022, Forney ISD, (Approx. 2021), https://www.forneyisd.net/site/default.aspx?PageType=3&DomainID=4&ModuleInstanceID=128&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108&RenderLoc=0&FlexDataID=30424&PageID=1.
[60] Willett Elementary Set to Break Ground; Branch Named Principal for Fall 2022, Forney ISD, (Approx. 2021), https://www.forneyisd.net/site/default.aspx?PageType=3&DomainID=4&ModuleInstanceID=128&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108&RenderLoc=0&FlexDataID=30424&PageID=1.
In his majority opinion in Collins v. Mnuchin, Willett stated, “even the most well-intentioned bureaucrats, no less than presidents, legislators, and judges, are bound by constitutional principles. An agency is restrained by the four corners of its enabling statute and ‘literally has no power to act... unless and until Congress confers power upon it.”[61]
A concurrence Judge Willett joined in Cochran v. U.S. Securities and Exchange Commission was critical of the administrative state and disagreed with the proposition that administrative review was more efficient than judicial review.[62] This concurrence said the efficiency of judicial review is irrelevant. The judges argued if a court has jurisdiction, they may take the case irrespective of efficiency.[63]
In his majority opinion in Forrest Gen. Hosp. v. Azar, Judge Willett criticized the growing power of governmental agencies . Willett argued the Constitution allots “all” power to the legislative branch to create and pass laws, and that Congress’s “statutes define the scope of agencies’ power.”[64]
Willett argued that Article III courts “must not outsource their constitutionally assigned interpretive duty to Article II agencies when the Article I Congress has spoken clearly.”[65]
[61] Collins v. Mnuchin, 983 F.3d 553, 562 (5th Cir. 2019), http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf.
[62] Cochran v. U.S. Securities and Exchange Commission, 20 F.4th 194, 234 (5th Cir. 2021) https://www.justice.gov/sites/default/files/briefs/2022/03/24/cochran_pet_final.pdf.
[63] Cochran v. U.S. Securities and Exchange Commission, 20 F.4th 194, 234 (5th Cir. 2021) https://www.justice.gov/sites/default/files/briefs/2022/03/24/cochran_pet_final.pdf.
[64] Forrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019) http://www.ca5.uscourts.gov/opinions/pub/18/18-60227-CV0.pdf.
[65] Forrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019) http://www.ca5.uscourts.gov/opinions/pub/18/18-60227-CV0.pdf.
Judge Don Willett has spoken at 19 Federalist Society events, from 2012 to 2021.[66] Judge Don Willett served George W. Bush “as a legal advisor in Texas and Washington.”[67] During much of Bush’s time in the White House, Judge Don Willett was Deputy Assistant Attorney General at the U.S. Department of Justice.[68] He also “served a stint as special assistant to the president, often providing legal counsel on religious liberty and other issues.”[69] Judge Don Willett has been involved in the National Fatherhood Initiative and Big Brothers Big Sisters since at least 2018.[70] Judge Don Willett said that he was the most conservative member of the Texas Supreme Court[71] Judge Don Willett was appointed to the Texas Supreme Court in 2005 by Governor Rick Perry.[72] Just prior to his appointment, he was Deputy Texas Attorney General for Legal Counsel, serving as chief legal advisor to then-Attorney General Greg Abbott.[73] In 1999, Judge Don Willett co-authored an article opposing affirmative action. The article, championed “affirmative opportunity for all” over “affirmative action for some,”[74] claimed that “conventional affirmative action has failed,” and that “the vast majority of minorities are not held back by racial bigotry, but by fractured families and poor K-12 schools that deny them the credentials required to enter elite social institutions.”[75]
[66] Past Events, The Federalist Society, (2023), https://fedsoc.org/past-events?speaker=don-Willett&page=1.
[67] Staff Reports, Justice profile: Willett advised Bush in Austin, D.C., Longview News Journal, (February 22, 2018), https://www.news-journal.com/news/texas_supreme_court/justice-profile-Willett-advised-bush-in-austin-d-c/article_e69f1729-7ebc-5fdb-8099-528800df8609.html.
[68] Staff Reports, Justice profile: Willett advised Bush in Austin, D.C., Longview News Journal, (February 22, 2018), https://www.news-journal.com/news/texas_supreme_court/justice-profile-Willett-advised-bush-in-austin-d-c/article_e69f1729-7ebc-5fdb-8099-528800df8609.html.
[69] Staff Reports, Justice profile: Willett advised Bush in Austin, D.C., Longview News Journal, (February 22, 2018), https://www.news-journal.com/news/texas_supreme_court/justice-profile-Willett-advised-bush-in-austin-d-c/article_e69f1729-7ebc-5fdb-8099-528800df8609.html.
[70] Staff Reports, Justice profile: Willett advised Bush in Austin, D.C., Longview News Journal, (February 22, 2018), https://www.news-journal.com/news/texas_supreme_court/justice-profile-Willett-advised-bush-in-austin-d-c/article_e69f1729-7ebc-5fdb-8099-528800df8609.html.
[71] S. Questions for Answer, p. 4. Questions from Senator Feinstein. Question #6a.
[72] Candidate Details, Our Campaigns, (June 29, 2018), https://www.ourcampaigns.com/CandidateDetail.html?CandidateID=130956.
[73] Candidate Details, Our Campaigns, (June 29, 2018), https://www.ourcampaigns.com/CandidateDetail.html?CandidateID=130956.
[74] T. Vance McMahan & Don R. Willett, Hope from Hopwood: Charting a Positive Civil Rights Course for Texas and the Nation, Stanford Law & Policy Review, (Spring 1999), https://purl.stanford.edu/xd194st9538 at 164, (emphasis added).
[75] T. Vance McMahan & Don R. Willett, Hope from Hopwood: Charting a Positive Civil Rights Course for Texas and the Nation, Stanford Law & Policy Review, (Spring 1999), https://purl.stanford.edu/xd194st9538 at 169, (emphasis added).
Justice Willett joined the majority in striking down a tort reform law as unconstitutionally retroactive, and also wrote separately warning about government overreach. Willett wrote, “Every case that reaches this Court concerns real people buffeted by real problems in the real world. This dispute, however, possesses a transcendent quality, touching not only these parties but also building-block constitutional principles that belong to all Texans. In that sense, it affords a whetstone on which to sharpen our thinking on some bedrock notions of government and how the Texas Constitution assigns democratic responsibilities. More to the point, it teaches a vital lesson about diminished liberty stemming from government overreaching: The Legislature's police power cannot go unpoliced.” [76]
Willett concluded: “Summing up: Judges are properly deferential to legislative judgments in most matters, but at some epochal point, when police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction.”[77]
Justice Willett defended economic rights under the constitution. The 2015 case concerned a state requirement for salon owners to obtain a license for eyebrow threading. He wrote: “This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.”[78]
He added: “Police power is undoubtedly an attribute of state sovereignty, but sovereignty ultimately resides in ‘the people of the State of Texas.’ The Texas Constitution limits government encroachments and does so on purpose. "Our Bill of Rights is not mere hortatory fluff; it is a purposeful check on government power."[79]
Willett signed onto an opinion affirming an injunction on President Biden’s COVID-19 mandates. The opinion said, “To allow this mandate to remain in place would be to ratify an ‘enormous and transformative expansion in’ the President's power under the Procurement Act. Air Regul. Grp., 573 U.S. at 324. Under Supreme Court precedent, this Court cannot permit such a mandate to remain in place absent a clear statement by Congress that it wishes to endow the presidency with such power.”[80]
Later in 2023, Willett signed onto another opinion siding with Governor Greg Abbott against Biden's vaccine mandates on the military. The opinion read, “In this case, President Biden imposed and then repealed a mandate requiring State militiamen to take the COVID-19 vaccine. And now that the President has rescinded the vaccine requirement, he wants to retain the power to punish militia members who refused to get the shots while the mandate was in effect—all without calling them into national service. We reject the President's assertion of power because it would undermine one of the most important compromises in the Constitution. If the Constitution's text, history, and tradition make anything clear, it's that the President can punish members of the Texas militia only after calling them into federal service.”[81]
[76] Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 159 (Tex. 2010), https://search.txcourts.gov/historical/2010/oct/060714.pdf (emphasis added).
[77] Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 165 (Tex. 2010), https://search.txcourts.gov/historical/2010/oct/060714.pdf (emphasis added).
[78] Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69, 93 (Tex. 2015) Link https://www.txcourts.gov/media/1008502/12-0657c1.pdf. (emphasis added).
[79] Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69, 121 (Tex. 2015) Link: https://www.txcourts.gov/media/1008502/12-0657c1.pdf, PDF p. 45. (emphasis added).
[80] Louisiana v. Biden, 55 F.4th 1017, 1031 (5th Cir. 2022), https://www.ca5.uscourts.gov/opinions/pub/22/22-30019-CV0.pdf, PDF p 23.
[81] Abbott v. Biden, No. 22-40399, 2023 U.S. App. LEXIS 14612, 2 (5th Cir. June 12, 2023), https://cases.justia.com/federal/appellate-courts/ca5/22-40399/22-40399-2023-06-12.pdf?ts=1686612628 PDF p. 2 (emphasis added).
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.