Change is coming to the state’s highest court
Gov. Jerry Brown is preparing to make one of the most consequential appointments of his final term in office, a justice who could shift the ideological balance of the state Supreme Court. Californians will need to undertake some preparation, too, and get reacquainted with an institution that impacts the lives of most of the state’s residents. The composition of the state’s highest court will be in voters’ hands in November 2018, when the new appointee and two colleagues will be on the ballot.
The court has not had a majority of Democratic appointees since 1986, when Chief Justice Rose Bird and two other Brown appointees were voted out of office in a campaign that focused on their reversals of death sentences. That is about to change once Brown names a successor to Justice Kathryn Mickle Werdegar, who is retiring Aug. 31.
Thirty-odd years ago, anyone who followed California politics knew something about the state Supreme Court — who its justices were, how they got there, how they ruled (particularly in death penalty cases), and when they would next appear on the ballot.
Times and courts have changed, and even news-savvy readers could be forgiven if they are less familiar with the state’s highest judicial authority than with, say, Donald Trump Jr.’s emails or his father’s tweets.
Werdegar, appointed in 1994 by Gov. Pete Wilson, her UC Berkeley law school classmate, has turned out to be a moderate who helped to swing a previously conservative majority leftward on social issues.
One of her rulings, in 1996, required business owners — in that case, a landlady who objected to renting to an unmarried couple — to follow state civil rights laws regardless of their religious views. She joined a 1997 decision striking down a state law that would have required minors to get parental consent for an abortion. And in 2008 she was part of the 4-3 majority that legalized same-sex marriage under the state Constitution, a ruling that the voters overturned six months later in a ballot measure that was itself overturned by federal courts.
Her successor isn’t likely to change the court’s overall leanings dramatically, at least not at first. Brown, whose appointees during his first stint as governor included some who could be described
as very liberal — such as Bird, Allen Broussard and Cruz Reynoso — appears to have taken a different approach with the justices he has named since returning to office in 2011.
Justices Goodwin Liu, Mariano-Florentino Cuéllar and Leondra Kruger all have Democratic backgrounds and probably could be described as left of center, in varying degrees.
But all three have voted with their Republican-appointed colleagues more often than not, including in death penalty cases, and Kruger in particular has taken a more conservative stance than Werdegar on occasion.
Over a longer period, however, a new majority of Democratic appointees, all now in their 40s, portends a different future for a court that moved sharply to the right after the 1986 election, shifted to the center in the mid-1990s and still sides with prosecutors in most criminal cases.
Brown has a record of judicial trailblazing — he appointed the court’s first female justice (Bird, in 1977), and its first African American and Latino justices (Wiley Manuel, 1977, and Reynoso, 1981), as well as the nation’s first openly gay judge in any court (Stephen Lachs, Los Angeles County Superior Court, 1979). The state’s high court has never had a gay or lesbian justice. And Brown has also tended to look outside the court system for his selections; none of his current appointees had ever served as judges.
It is also a court that, more than its federal counterpart, oversees the conflicts of everyday life — crime in the streets, marriage and divorce, taxes, business dealings, workplace disputes, traffic accidents and insurance, to name some common varieties. Most such cases are heard by local judges whose rulings are governed by decisions of the state’s highest court, which generally takes up issues in which the law is unclear and the intermediate appellate courts are in disagreement.
The X factor in the court’s domain is California’s initiative process, which has both shortened and lengthened the justices’ wingspan.
Ballot measures have been deployed, mostly by conservatives, to overturn controversial rulings — the 2008 decision on same-sex marriage, a 1972 ruling declaring the death penalty to be in violation of the California Constitution, and a series of rulings in the 1970s and 1980s restricting evidence from police searches and interrogations found to violate state law.
But the court has also determined the impact of initiatives — first narrowing, then broadening, the scope of voterapproved restrictions on local taxes, authorizing judges to waive “three strikes” life terms for some third-time felons in the interest of justice and overturning two 1988 ballot measures that would have imposed restrictions on campaign contributions.
The most important case the justices have heard and not yet decided will test their view of how far the initiative power extends.
Proposition 66, approved by the voters in November, aims to speed up executions in California by, among other provisions, requiring the state’s high court to decide all death penalty appeals within five years, less than half the average time for current rulings. Its proponents insist it could be implemented without disrupting the court, but it’s hard to see how the justices could come close to meeting the five-year deadline without putting other criminal and civil cases on the back burner.
The case was argued at Werdegar’s last hearing, on June 6. A ruling is expected before she leaves at the end of August.