Court Brief Citing

That Time Ted Cruz Submitted a Supreme Court Brief Citing … Ted Cruz

How his ‘extremely conservative’ law school article about ritual sacrifice made it to the highest court.

By Michael Linhorst

Twelve years ago, in the fall of its 2003 term, the U.S Supreme Court received a written brief from Texas Solicitor General Ted Cruz with a very unusual footnote. The case was called Locke v. Davey, and it concerned the constitutionality of a Washington State college scholarship that excluded students studying religion—a key issue for the movement conservatives Cruz considered his political allies. Texas wasn’t a party in the case, but the ambitious lawyer was already gaining a reputation for inserting himself into national debates by filing briefs about attention-grabbing cases with no direct relation to his state.

Like all legal briefs, Cruz’s cited cases, laws and law journal articles as authorities to back up his argument. Among those sources was an obscure article about animal sacrifice, which the author argued should be allowed as an expression of religious liberty. The subject matter was unusual for a Supreme Court brief, but even more unusual was the article: It was a student’s analysis published nearly a decade earlier in a conservative journal at Harvard Law School.

Cruz didn’t name the student author in his brief. But if the justices had looked it up, they would have found a surprise: It was a 24-year-old Harvard law student named Ted Cruz.

In fact, Cruz cited his own 1994 article not once but twice before the Supreme Court: in briefs submitted in Locke v. Davey and in another religious liberty case in 2006, Anderson v. Town of Durham. Cruz referred to the article only to support a few general statements—nothing groundbreaking or controversial. But he didn’t identify himself as the article’s author either time—which was a violation of the legal citation guidelines in place at the time and, legal experts say, was a bit deceptive.

“I think the court would have preferred to know, and might have felt somewhat misled if anyone went to read the note,” says Douglas Laycock, a professor at the University of Virginia School of Law and a leading legal authority on religious liberty. “I would have identified myself.”

Leah Litman, a lecturer at Harvard Law School who served as a clerk for Justice Anthony Kennedy, agrees that it was “a little strange” Cruz didn’t identify himself. “He’s identified as the author of the piece [in the journal]. And when you cite a secondary source in a brief, you give the author. There really isn’t a good reason not to,” she says.

Cruz’s campaign did not respond to requests for comment for this article.

Cruz’s secret self-citations might be minor details in the story of a bright young lawyer rising to political prominence. But these details—and the article itself, which has never been publicly analyzed—offer an important window into the tactics and thinking of a man whom law school classmates and political colleagues have described as arrogant and sharp-elbowed. The arguments in the article also offer a glimpse at the intellectual development of an unflagging conservative who promises as president to nominate “principled constitutionalists” to the Supreme Court.

The Ted Cruz of 20 years ago, it turns out, was much the same as the Ted Cruz of today.

Published in 1994 in the Harvard Journal of Law and Public Policy, a conservative student journal for which Cruz served as an editor, the article is well-written. But it is also brash, legal scholars said, combining a focus on religious liberty with a level of self-regard unusual even among Harvard Law students. And its arguments about the First Amendment fall further right than even the most conservative Supreme Court justice supported at the time and, from the perspective of a constitutional conservative, go strategically beyond the case at hand.

Cruz analyzes a Supreme Court case involving Santeria, a Cuban religion fusing African-Yoruba beliefs with Catholicism in which adherents perform animal sacrifices on special occasions. When a group wanted to open its own church in a city near Miami in 1987, the city council got worried. It held an emergency meeting at which residents cheered the idea of throwing people practicing Santeria in jail, and the local police department’s chaplain called the religion “an abomination to the Lord.” The council quickly passed a series of ordinances banning the ritual slaughter of animals. The official reason for the new laws was protecting public health and safety, but everyone knew they were really about keeping Santeria out of town.

The Supreme Court decided the case, Church of the Lukumi Babalu Aye v. City of Hialeah, in 1993 and unanimously overturned the city’s ordinances for violating the First Amendment’s guarantee of freedom to practice religion. The justices said that even though the ordinances were written in a neutral way—they outlawed ritual sacrifice regardless of what religion wanted to do it—they were actually targeted at Santeria and so were unconstitutional.

Cruz agreed wholeheartedly with that decision, writing that the court was “absolutely correct.”

But he took issue with a more technical part of the court’s decision, staking out a position described by constitutional law experts as unusually conservative. The issue was the way in which the First Amendment’s protection for freely exercising religion was applied—or “incorporated,” in the legal jargon—to state and local governments, rather than just the federal government.

The court used the 14th Amendment’s due process clause (no state shall “deprive any person of life, liberty, or property, without due process of law”); that is a common strategy for incorporation, but one that some conservatives dislike because it rests on the definition of “due process,” which might change over time. Worried that the strategy would make it too easy for courts to trample on religious liberty in the future, Cruz called the use of the due process clause “a symbol of illegitimate judicial activism.” Instead, he argued that a different part of the 14th Amendment—prohibiting states from denying equal protection of the law—would give activist judges less leeway to infringe on religious freedom than the due process clause and therefore should be used for incorporation.

Courts haven’t adopted the equal protection idea, which amounts to a wholesale rethinking of how the Bill of Rights applies to the states and survives just in the writings of some conservative legal thinkers. Not even Justice Clarence Thomas, known to be the furthest right on the Supreme Court, embraces the approach to incorporation that Cruz advocated.

“It’s a pretty radical view,” says Michael Dorf, a constitutional law professor at Cornell Law School. “Thomas’ view requires you to reconfigure some doctrine, but it doesn’t require you to undo most of incorporation doctrine,” as Cruz’s position would.

“This is the note of an extremely conservative activist,” Laycock agrees.

The writing in Cruz’s article stands out too, illustrating a degree of brashness unusual in such staid settings as legal journals, according to the legal experts who read the article for this story. “There’s something both arrogant and un-scholarly about the prose style,” Dorf says.

Cruz called the court’s decision “absolutely” correct not once but twice—an uncommon claim for a law journal that is conservative not only in its politics, but also in its prose. He also unreservedly endorsed the decision in a predecessor of the Lukumi decision, Employment Division v. Smith—which was actually quite controversial at the time among conservatives. Smith held that a generally applicable law, one that applied to everyone regardless of religion, was constitutional even if it harmed members of one religion more than another. Some conservatives worried that the reasoning in Smith would severely weaken the free exercise of religion clause because it might allow lawmakers to come up with rules that appear to be evenhanded but actually have the effect of discriminating against a particular religion.

This was an apparent weakness in the argument of a defender of religious freedom. “He glibly signs on to a disaster for religious liberty” by unconditionally supporting the Smith decision, Laycock says, even as “he postured himself as arguing to save religious liberty.”

The animal sacrifice article wasn’t the only piece of writing Cruz published in law school. As an editor on the Harvard Law Review, he most likely wrote short articles—describing Supreme Court cases, reviewing books and the like—but student pieces in the law review are published unsigned. The Review has a policy against identifying the authors of student articles, and when asked to identify which work was his, two of Cruz’s contemporaries on the law review and two current editors all declined to do so.

There was one other legal article, though, that Cruz did put his name on. A dense argument about contract and tort liability law, it was much less ideological than his animal sacrifice piece. Cruz and his co-author and law school friend, Jeffrey Hinck, argued that an idea known as the “informed minority” theory—that a marketplace will remain efficient even if most consumers don’t understand what’s in the contracts they sign, so long as some consumers do—doesn’t hold up in practice. The pair made clear that they supported free markets; their goal, they wrote, was to strengthen the rhetorical position of free-market supporters by persuading them to abandon a theory that Cruz and Hinck saw as a losing argument.

Together, the contracts and animal sacrifice articles illustrate the breadth of Cruz’s academic work. He was busy in law school: Alongside his spot on the Harvard Law Review and his midlevel editor post on the Journal of Law and Public Policy, he helped found the Harvard Latino Law Review and worked as a research assistant for several professors. One of them, Alan Dershowitz, a legendary criminal defense attorney who later represented O.J. Simpson, has described Cruz as “off-the-charts brilliant.”

Bill Waller, who was an editor on the Journal of Law and Public Policy when Cruz wrote his Lukumi analysis, says the topic of Cruz’s article is a testament to his intellectual abilities—not every student got to write about high-profile Supreme Court decisions. “He was just an overall a very good writer. He got a really good topic,” Waller says.

Dorf, the Cornell law professor, agrees that the article’s description of the law was “certainly competent.”

Cruz, not surprisingly, seemed to think well of his writing, too. He opened the article with an extended quote from John Locke’s A Letter Concerning Toleration, seemingly equating his own arguments to those of the famous Enlightenment thinker.

He remained proud to share that writing years later—even directing the justices of the Supreme Court to read it, too.