Tuesday’s Republican Senate primary in Texas ended in a tie, with no candidate receiving a majority of the vote. Outgoing Senator John Cornyn will face state Attorney General Ken Paxton in a May 26 runoff.
Although Cornyn will receive more votes than the other two Republican candidates — as of this writing, Cornyn has 43 percent of the vote, compared to Paxton’s 40 percent — Cornyn faces a tough road if he hopes to save his political life. Veteran senators (Cornyn was first elected in 2002) typically do not face strong opponents within their own party. And the bottom line is that most Texas Republican voters just voted to make someone other than Cornyn their senator.
Paxton’s strong performance, moreover, is a victory for the far-right movement seeking to reshape the way the US Constitution is interpreted — one that rejects the liberal democratic theory of the Constitution popularized in the 1960s, and that approaches legal interpretation through a more partisan lens.
This includes challenging election results. As Texas AG, Paxton brought Texas vs. Pennsylvaniaa case seeking to prevent the victory of President Joe Biden in the 2020 election.
Beginning in the Obama administration, the Texas Attorney General’s office became the primary source of federal lawsuits challenging Democratic policies, and this practice increased once Biden took office. Paxton claims to be him sued the Biden administration 106 times as Texas’ top law enforcement officer, filing the final case just hours before Biden leaves office.
In fact, Paxton did not single-handedly build the Texas Attorney General’s office into the most important Republican law firm in the country from the ground up. The office began to claim itself as a store of cases of the Republican Party under Paxton’s predecessor, who is now Gov. Greg Abbott, who, among other things, successfully suing the Obama administration blocking a plan that would have allowed millions of immigrants to work and stay in the United States.
But Paxton, who succeeded Abbott in 2015, took over the state AG’s office shortly before Donald Trump began turning the Republican Party into a vehicle for anti-immigration policies and his own agenda. And, because the Texas AG’s office often advances Republican legal positions in court, that means Paxton played a major role in shaping the Trump-era GOP’s legal strategies and arguments.
Republican Party officials are still sometimes divided on important legal questions – just look at the Supreme Court Trump’s recent tax cut decision. As the leader of one of the Republican Party’s most important sources of legal power, Paxton did as much as any other attorney to move the party’s legal arguments in Trump’s direction and advance MAGA’s distinct approach to legislation.
Why Texas brings so many lawsuits that seek to advance Republican causes
It makes sense for the GOP to focus its litigation resources on Texas, regardless of which Republican controls the state AG’s office. Texas is a big state, and nearly 750 lawyers work under Paxtonso it can afford to turn a few – or even a few dozen – of these lawyers into a cult legal profession. And two unusual features of the Texas federal court system make Texas attractive to Republican plaintiffs.
One is that Texas federal courts often allow plaintiffs to do so choose a court judge who will hear their case. Republican defendants often take advantage of this court tactic of allowing the shopping of judges to obtain favorable court orders. Consider Judge Matthew Kacsmaryk, the Christian rights activist whom anti-abortion advocates chose because he would grant their request to ban the abortion drug mifepristone (Supreme Court unanimously turned Kacsmarykholding that he has no jurisdiction over the case).
Texas federal cases are also appealed to the United States Court of Appeals for the Fifth Circuit, which is governed by judges closely associated with the MAGA movement. Texas, in other words, is one of the few places where a plaintiff filing a federal lawsuit can expect their case to be heard by judges who even more sympathy for the Republican Party than the current Supreme Court.
Paxton did not appoint these judges, nor did he set rules that allow his office to often choose which judge hears his cases. But he has taken full advantage of the sympathetic judges who often hear his cases. And his office has long been an incubator for MAGA legal talent.
Indeed, if Paxton wins the November general election, all three of Texas’ top elected jobs will be held by Republicans who cut their teeth as part of the Texas AG litigation machine. Abbott ran the AG’s office before Paxton. And another Texas senator, Republican Ted Cruz, spent five years as Abbott’s general counsel.
It is also likely that MAGA’s definitive Texas approach to statutory interpretation will find its way to the Supreme Court. Two judges of the Fifth Circuit, James Ho and Andrew Oldhamare alumni of the Texas attorney general’s office, and are widely considered to be top contenders for a Supreme Court nomination in Trump’s second term. Both men often embrace legal positions that are on the current Supreme Court justice.
How Paxton pushed opposing legal ideas into the mainstream
The Supreme Court’s disarray under Trump, along with an even more aggressive Fifth Circuit on the right, appears to be emboldening Republicans across the Texas state. These courts enabled Paxton to shut down many of the Biden administration’s immigration policies for months. And they encouraged the state legislature to enact many bills that clearly violated the Constitution, at least as the Constitution was understood when it was drafted.
Because Paxton’s office was generally charged with defending these bills, that meant his office often argued for unpopular constitutional changes. And he succeeded many times.
Before Roe v. Wade repealed in 2022, for example, Texas passed SB 8, which effectively banned multiple abortions by allowing private bounty hunters to collect large sums of money from abortion providers. Paxton’s office was one of several teams of lawyers who to persuade the Supreme Court SB 8 coverage from any meaningful judicial review.
In fact, the decision of the Court Women’s Health vs. Jackson (2021) is probably one of the most influential constitutional decisions in the Court’s history. If taken seriously, the reasoning of the Court in Jackson would be allow any country to abrogate any constitutional right by sending bounty hunters against anyone who tried to exercise that right – although, in fact, it is likely that the five Republican judges who signed it. Jackson they would follow their own judgment in a case that did not involve abortion.
Similarly, in Free Speech Coalition v. Paxton (2025), Texas enacted an anti-pornography law that was almost identical to a federal law that the Supreme Court threw out in 2004. However, instead of using their original decision, Paxton’s lawyers managed to convince the Supreme Court to abandon the 2004 decision and follow state law.
Paxton also repeatedly lost in the Supreme Court. Texas vs. PennsylvaniaPaxton’s attempt to overturn the 2020 election, he didn’t go anywhere. The court also struck down a Texas law that clearly violates it Moody v. Netchoice (2024), where the Republican legislature attempted to do so capture control of content control on major social media platforms like Twitter, Facebook, or YouTube.
In some cases, Paxton’s office won a temporary victory from the Supreme Court, before losing months later. In Biden vs. Texas (2022), for example, Paxton got Kacsmaryk to restore the Trump-era border policy that the Biden administration had scrapped. Although the Supreme Court ultimately overruled Kacsmaryk, criticizing him for placing “a significant burden on the Executive’s ability to conduct diplomatic relations with Mexico,” He stayed on trial for almost a year – Allowing Kacsmaryk to act as US border king for that entire period.
Similarly, in United States vs. Texas (2023), Paxton’s office appointed MAGA-affiliated judge Drew Tipton to block a Biden administration memo directing Immigration and Customs Enforcement to prioritize immigrants who “threaten national security, public safety, and border security and thereby threaten America’s well-being.” Tipton’s decision was against the lawbecause federal law says that the Secretary of Homeland Security, not Tipton, “shall be responsible” for “establishing national immigration enforcement policies and priorities.”
Once again, however, Paxton’s office persuaded the Supreme Court stop Tipton prescription for 11 monthsbefore the judges finally overturned him.
These are just a small sampling of the most important political cases handled by Paxton’s office – again, the Texas AG filed over a hundred different federal cases against the Biden administration. But it is indicative of the aggressive approach with which Paxton was brought to the state’s trial. His office took dubious legal positions. It brought charges that contradicted the plain language of the federal statutes. It even tried to overturn the presidential election.
Paxton’s office, in other words, was an incubator for some of the most radical legal theories from the conservative legal movement of the last decade. And, with sympathetic judges on his side, Paxton won these cases surprisingly often.
