In most ways, the year 1998 doesn\u2019t seem like the distant past. Christopher Nolan released a movie. Willie Nelson became a senior citizen. You could visit Google.com and search the internet. But when a little-known 46-year-old Texas Supreme Court justice named John Cornyn ran for state attorney general that year, he might as well have been campaigning in prehistoric times. The origins of our current era were faintly discernible, like aurochs painted in the Lascaux caves, but, in a fundamental way, the job that Cornyn sought would be almost unrecognizable to a Texan today.\u00a0<\/p>\n
The most consequential difference was the position\u2019s partisan goals. Cornyn was a lifelong Republican, seeking to become the state\u2019s first Republican attorney general since Reconstruction. But even in a hotly contested GOP primary, Cornyn liked to talk about his legal acumen rather than trumpet any plans to fight for conservative policy aims. \u201cWe need to have someone who is a real lawyer and not just a politician,\u201d Cornyn said at the time. When his Supreme Court record of sometimes upholding legislation disliked by conservatives became a campaign issue, Cornyn outlined his legal philosophy simply: \u201cI do not agree .\u00a0.\u00a0.\u00a0that if you do not like the law, you should strike it down.\u201d\u00a0<\/p>\n
Cornyn<\/a> won the party\u2019s nomination with this decidedly technocratic rhetoric, then prevailed in the general election. As attorney general he prioritized the collection of child support payments (one of the AG\u2019s core functions), created the role<\/a> of solicitor general to more effectively argue state cases in the appellate courts, and generally sought, he said, to \u201cprofessionalize\u201d the office and \u201crecruit the best and brightest.\u201d His agency wasn\u2019t politics-free. He personally argued a case in front of the U.S. Supreme Court in which he unsuccessfully defended the rights of the Santa Fe Independent School District to have student-led prayers at its high school football games. (A Texas Monthly piece from this era wondered if Cornyn was \u201cplaying politics with the law at the expense of the public interest.\u201d) But Cornyn said he saw the job primarily as \u201crepresenting our client, which is the State of Texas and the state agencies, to the best of our ability.\u201d<\/p>\n Cornyn, now serving out the final few months of his 24 years in the United States Senate, is proud of his time as attorney general, and he still thinks state attorneys general should execute the office as he did. \u201cWell, this won\u2019t surprise you,\u201d Cornyn told me when we spoke this past summer. \u201cI\u2019d like to see it return to its traditional role.\u201d\u00a0<\/p>\n But Cornyn also knows his era is long past. Over the two and a half decades since he left the position for the U.S. Senate, his successors, Greg Abbott and Ken Paxton, have steered<\/a> the Texas attorney general\u2019s office ever more aggressively toward the front lines of partisan conflicts. Abbott began to sue the Obama administration so regularly that he famously quipped<\/a>, \u201cI go into the office. I sue the federal government. And then I go home.\u201d And Paxton turned Abbott\u2019s single-mindedness into a kind of right-wing-base-affirming performance art, finding a way to file a lawsuit (or issue a press release) over seemingly every hot-button right-wing cause\u2014transgender medical care, abortion pill access, election integrity, immigration enforcement. (Paxton even sued<\/a> the makers of Tylenol for \u201cdeceptively marketing\u201d to pregnant women after President Trump hyped a spurious claim<\/a> that the painkiller causes autism.)\u00a0<\/p>\n Now Paxton is leaving the office, and State Senator Mayes Middleton of Galveston, the Republican nominee, has promised to out-Paxton Paxton. He has revealed that he sees the office as mainly engaged in an ideological crusade, saying<\/a>, \u201cThe most important thing in the attorney general\u2019s role is defeating the left.\u201d<\/p>\n The transformation of the office drives Cornyn a little crazy, at least as much as the studiously measured senator will admit to such things. \u201cThere are plenty of lawsuits out there, and there are plenty of good lawyers who can file lawsuits against social media companies, pharmaceutical companies, and others,\u201d he told me in his deliberate baritone. \u201cBut I have to believe that the attorney general focusing on those sort of high-profile political-social issues comes at a loss to their representing the state and state agencies as their number one job.\u201d<\/p>\n What does the Texas attorney general\u2019s office do exactly? What should its number one job actually be? The state\u2019s 1876 constitution defined<\/a> the role narrowly: The attorney general represents the state in \u201call suits and pleas\u201d involving state interests in the Texas Supreme Court, and he or she takes \u201csuch action in the courts as may be proper and necessary\u201d to prevent corporations from exercising any power not authorized by law. Nearly every word of that definition is still on the books<\/a>. (The biggest change has been the removal of the 1876 constitution\u2019s hard cap on the attorney general\u2019s annual pay at $2,000.)<\/p>\n Although the Texas attorney general is sometimes referred to as the state\u2019s top cop, the office, in fact, has a limited law enforcement role, mostly that of supporting local district attorneys, who are the officials actually tasked with criminal prosecutions. Instead, the AG oversees an office with a hodgepodge of functions. If you\u2019re the victim of a scam or deceptive marketing, you can go to the office\u2019s website, file a consumer complaint, and one of the four thousand or so staffers should at least take a look. If you think your kid\u2019s public school is violating a state law, you can report that to the office too. The list goes on. There are currently 38 divisions, covering everything from cybercrime and antitrust law to Medicaid fraud, which makes sense given that the \u201cgeneral\u201d in \u201cattorney general\u201d is an adjective, as in \u201cnot confined by specialization or careful limitation,\u201d not a noun for top military commander\u2014although many attorneys general have been happy not to correct the error.<\/p>\n For much of Texas\u2019s history, you could have accurately thought of the AG as a statewide version of a country lawyer operating from a small office on Main Street with his name on the door. By the time Cornyn won his election in 1998, the office wasn\u2019t quite so sleepy. His immediate predecessor, Dan Morales, a Democrat, had successfully sued the tobacco industry for public health costs related to smoking, helping to set the stage for a massive multistate settlement that showed how much more powerful states could be when they banded together.\u00a0<\/p>\n When Greg Abbott took over the attorney general\u2019s office from Cornyn at the end of 2002, he steered it in an overtly partisan direction. One of his first moves was hiring a 32-year-old former Bush-Cheney campaign policy adviser named Ted Cruz as his solicitor general. As Cruz would later recount, Abbott told him, \u201cLook across the country. If there are conservative principles we can fight and defend, if we can make a difference defending the Constitution and the Bill of Rights, go do it.\u201d\u00a0<\/p>\n Abbott and Cruz were limited, though, in their ability to sue the federal government at first. The U.S. Supreme Court had held that a state needed to show it faced \u201cactual or imminent\u201d injury, among other criteria, to bring a federal lawsuit. In 2007 that changed. Massachusetts sued the George W. Bush administration\u2019s Environmental Protection Agency for failing to enforce climate change regulations. In siding with Massachusetts in a 5\u20134 decision, the court\u2019s majority found that the state had a lower threshold for bringing suit against the federal government than another plaintiff would. Massachusetts, Justice John Paul Stevens wrote, had \u201cspecial solicitude<\/a>\u201d to challenge the federal government. All the other states did too.<\/p>\n It had been the Supreme Court\u2019s liberals who had embraced this new doctrine of special solicitude, but back in Texas, Abbott was eager to test what it meant for conservative causes. Once Barack Obama succeeded Bush in the White House, Abbott began to regularly sue the federal government.\u00a0<\/p>\n But Abbott, who, like Cornyn, had served on the state Supreme Court, still felt beholden to the constitutional responsibilities of the AG\u2019s office, including defending state entities. When two students who were denied admission to the University of Texas at Austin brought a lawsuit over its affirmative action policies, Abbott\u2019s office came to the school\u2019s defense<\/a>, even though the policy was anathema to conservatives.<\/p>\n Abbott\u2019s successor, Ken Paxton, had none of his hang-ups about defending state agencies with politically inconvenient policies. As documented by The Texas Tribune and ProPublica<\/a>, Paxton has repeatedly declined to represent Texas entities that have been sued by conservative groups. Meanwhile, he has used consumer-protection laws to demand records from voter-registration groups and nonprofits that offered services to immigrants and refugees. He sued local governments, particularly in Texas\u2019s large Democratic-voting cities, over everything from plastic-bag fees<\/a> to enforcement of marijuana laws<\/a>.\u00a0<\/p>\n Paxton was so aggressive in his use of the attorney general\u2019s office that he forced the U.S. Supreme Court to grapple with the limits of special solicitude. When he led a multistate coalition in suing Pennsylvania, Wisconsin, Michigan, and Georgia over the 2020 election results, the court, in an unsigned order, rejected Paxton\u2019s motion, finding that<\/a> \u201cTexas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.\u201d Three years later, when Paxton joined Louisiana\u2019s AG in suing the Biden administration over its immigration-enforcement priorities, the justices, in an 8\u20131 decision, ruled against the states, finding that they couldn\u2019t simply sue their way out of every policy they didn\u2019t like. \u201cThe Constitution affords federal courts considerable power,\u201d Justice Neil Gorsuch wrote in a concurring opinion, \u201cbut it does not establish \u2018government by lawsuit.\u2019\u200a\u201d<\/p>\n In a different political reality, perhaps, such words from a preeminent conservative jurists might have chastened the Texas attorney general and his potential successors. But Paxton had made himself a Republican star by suing the federal government, and that kept him politically viable even as he faced more than a decade\u2019s worth of scandals, an indictment, alleged extramarital affairs, whistleblower complaints, and an impeachment. Even if Paxton\u2019s record of legal accomplishments in office was a mixed bag<\/a>\u2014filled with more high-profile press releases than consequential victories\u2014he proved emphatically that being a deeply partisan attorney general was a winning political strategy.<\/p>\n No one knows this better than Cornyn, who lost his Senate seat when he was defeated by Paxton in this year\u2019s Republican primary runoff. \u201cI think there\u2019s a huge temptation from a political standpoint to follow the Paxton model,\u201d Cornyn told me. \u201cThere\u2019s no question that Paxton\u2019s advanced his political career by being seen as a warrior on behalf of a variety of causes, whether they\u2019re related to MAGA or whatever.\u201d<\/p>\n Cornyn told me he hadn\u2019t talked to Middleton, the Republican nominee, about how he would run the AG\u2019s office, but Middleton has made his plans quite clear, setting out a list of stridently partisan priorities. He plans to use the office to \u201cdefeat these atheist precedents that have stopped prayer in school.\u201d He has pledged, \u201con day one,\u201d to initiate an investigation of the 96-year-old billionaire financier George Soros, who gives lavishly to liberal causes, \u201cfor the crimes that I believe he has committed against Texas.\u201d He has also promised to investigate Dr. Anthony Fauci.<\/p>\n Middleton graduated from law school, but he\u2019s barely practiced, having spent his career as a state representative and senator and an executive of his family\u2019s oil and gas firm. This has caused some grousing<\/a>, even from his ideological allies, who watched as he deployed around $17 million of his own money to defeat Republican primary opponents with more-traditional attorney general credentials.\u00a0<\/p>\n But his lack of experience may not matter much. As Adam Piper, the executive director of the Republican Attorneys General Association, told<\/a> The Texas Tribune, the Texas attorney general\u2019s office is the \u201clargest legal power in the conservative movement, nationally, period, end of story.\u201d\u00a0<\/p>\n It may be too big and too politically consequential to fail, with plenty of conservative lawyers ready to lend a hand. Cornyn\u2019s 1998 campaign remark that the attorney general needs to be a \u201creal lawyer\u201d may very well turn out to be just another relic of a bygone time and a deeply changed office.<\/p>\n There is, of course, nothing in the Texas constitution mandating that the Texas attorney general be a conservative. What would it look like if a Democrat were at the helm? When I met Nathan Johnson, Middleton\u2019s opponent in the general election, he told me he was hoping to rescue the office from its obsession with partisan warfare. Johnson is a third-term state senator from Dallas whose background is as a commercial litigator, and he said he was trying to bake a less bellicose approach into the way his staffers talked. \u201cI have a list of words not to use in my campaign,\u201d Johnson told me as we sat in his campaign office in Austin. \u201cAnd one of those words is \u2018fight.\u2019\u200a\u201d<\/p>\n Forcing your campaign staff to avoid using the word \u201cfight\u201d may be one of the most counterintuitive and potentially self-defeating acts a politician could come up with in 2026. The word is everywhere. Progressives want to \u201cfight the oligarchy,\u201d conservatives want to \u201cfight the radical left.\u201d But Johnson thought taking the temperature down a few notches might make for a better pitch.\u00a0<\/p>\n \u201cIf I\u2019m a successful attorney general, there will be less fighting,\u201d he said. \u201cOne of my goals is to break it up, I guess. Come in here and separate the fighters.\u201d<\/p>\n To do that, Johnson imagines an office that is something like what Cornyn envisioned, albeit with more consumer-focused lawsuits and a populist bent. But he also knows that putting the genie back in the bottle won\u2019t be easy. Texas isn\u2019t the only state with a powerful attorney general, and Democratic AGs around the country have been zealous in suing the federal government under President Trump. Much as Abbott pushed back on the Obama administration\u2019s immigration policies, Democratic attorneys general have sued over the current administration\u2019s executive order to end birthright citizenship<\/a>, over restrictions on mail-in voting<\/a>, over its sweeping tariff regime<\/a>. At a time of congressional gridlock and an ever-more-powerful executive branch, state attorneys general are indispensable for the party that\u2019s out of power in Washington.\u00a0<\/p>\n \u201cI do think this office has become\u2014I hate these military analogies\u2014but it is deep in the partisan battles that are ripping the country apart,\u201d Johnson told me. \u201cAnd to some extent, if I\u2019m the next attorney general, I will be in those battles. And even if I don\u2019t particularly want to be partisan, I\u2019m going to be up against a hyper-partisan machine.\u201d Johnson knew that meant he was going to have to break his own rule, a concession to the reality of how much the position has changed since Cornyn\u2019s time. \u201cIf I have to get in some fights on the way,\u201d Johnson said, \u201cI will.\u201d\u00a0 <\/p>\n