San Francisco Chronicle - (Sunday)
California’s diverse top court often unanimous
The California Supreme Court is as diverse in its composition — politically, racially and sexually — as the U.S. Supreme Court. But one attribute the state justices have that their national counterparts apparently lack is an ability to reach consensus — this year, almost 90% of their rulings have been unanimous.
When the state court upheld Scott Peterson’s convictions for murdering his pregnant wife and their 8monthold fetus on Aug. 24 but overturned his death sentence, both by 70 votes, it was the court’s 30th unanimous ruling in 33 criminal cases this year. In civil cases, 28 of 32 decisions in 2020 have been unanimous.
Last year’s unanimity rates were a little lower — 85% in civil cases, 75% in criminal cases — but the 70 rulings included a hotly contested case in November that allowed President Trump to appear on the state’s primary ballot, despite a state law that would have excluded him for refusing to release his tax returns. The court has issued unanimous rulings in 75% to 80% of its cases for most of the past decade.
One reason is a set of rules that encourage the justices to confer with one another at early stages of each case. The justices also appear to have decided, in most cases, that bipartisan agreements
enhance their credibility with the public. “When a court can speak with one voice, it speaks in a far more authoritative way, and there is far greater likelihood of acceptance of its rulings,” former California Chief Justice Ronald George said in one of his oral history interviews for the 2013 book “Chief: The Quest for Justice in California.”
George noted the strenuous, and successful, efforts by Chief Justice Earl Warren to persuade his eight U.S. Supreme Court colleagues to sign onto the Brown vs. Board of Education ruling in 1954 and increase public acceptance for an end to school segregation. In 1974, the justices reached across political lines to unanimously order President Richard Nixon to release tapes related to the Watergate breakin, a ruling that led to Nixon’s resignation 16 days later.
It’s hard to imagine such a ruling now from the nation’s ideologically splintered high court.
In its justcompleted 201920 term, the court decided about 36% of its cases unanimously, compared to 38% in the previous term and 32% in the term before that, according to Adam Feldman, a University of Southern California political scientist and author of the Empirical Scotus blog. But none of those rulings came in controversial or hotly contested cases.
The court actually was more bipartisan than usual in its latest term. Chief Justice John Roberts joined the court’s more liberal justices in 54 rulings preserving, for now, the Deferred Action for Childhood Arrivals program for young undocumented immigrants and keeping abortion clinics open in Louisiana. Neil Gorsuch, an appointee of President Trump, wrote the 63 ruling protecting LGBTQ workers under employment discrimination laws, and was joined by fellow Trump appointee Brett Kavanaugh in a 72 decision allowing New York prosecutors to seek Trump’s tax returns.
California’s Supreme Court has not always been a chamber of harmony. George’s 43 ruling in 2008, overturning the state’s ban on samesex marriage, was itself overturned by the voters, then restored by a series of federal court rulings that took nearly five years. In 1997, a state law requiring parental consent for minors’ abortions, upheld a year earlier in a decision that never became final, was struck down in a 43 ruling by George, with the recently appointed Justice Ming Chin casting the deciding vote.
And in 1986, years of conservative furor over the court’s reversals of death sentences culminated in a firstever decision by the state’s voters to deny new 12year terms to Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin. Their replacements, chosen by Gov. George Deukmejian, gave the court a majority of Republican appointees that endured until Justice Kathryn Mickle Werdegar retired in 2017 and was succeeded by Groban, an appointee of Gov. Jerry Brown.
The postelection court, with a conservative majority, overturned a number of its predecessor’s rulings in the late 1980s, but began moving toward the center with the appointments of moderate Republicans like Joyce Kennard, a Deukmejian appointee, joined later by George and Werdegar, both named by Gov. Pete Wilson. Another moderate, Tani CantilSakauye, a former prosecutor and a state court judge for 20 years, was appointed by Gov. Arnold Schwarzenegger in 2010 to succeed the retiring George as chief justice.
Chin, the court’s longestserving justice and generally one of its most conservative members, retired Aug. 31, a vacancy to be filled by Gov. Gavin Newsom’s first appointee.
His departure still leaves the court as one of the nation’s most diverse judicial bodies: The six current justices, four of them Brown appointees, include three women, one African American, one Latino, two Asian Americans, and only one white male, Groban.
The court is no longer a political flash point — the last attempt to deny new terms to any of its justices, a campaign against George and Chin for their 1997 abortion votes, fell far short in the 1998 election. But it still hears hotly disputed cases, including automatic appeals of all death sentences, and has managed to find common ground on some contentious issues.
Facing conflicting claims by state officials and public employee unions of an impending pension crisis, the court issued a 70 ruling July 30
that was clearly a compromise: upholding legislative restrictions on employees’ preretirement maneuvers to increase their pensions, but leaving intact the California Rule, which entitles public employees to the pensions that were in effect during their careers.
Some of its rulings have unanimously reversed lowercourt decisions in noteworthy cases. In May, for example, the court allowed reporters and others to obtain government electronic records without paying the sometimessubstantial costs of removing confidential material. Its 2017 ruling allowed taxpayers to sue state and local governments for wasting public funds, and a 2016 ruling reinstated a state ban on potentially polluting suction dredgemining for gold.
The 70 rulings can’t be attributed to an absence of contested issues, said Kirk Jenkins, an attorney who studies and reports regularly on the state justices’ voting records. He said the California court receives more “friendofthecourt” briefs — filings from outside groups seeking to influence the outcome of a case — than any other state’s court he’s aware of, evidence that its decisions have a wide impact.
Achieving unanimity across party lines sends a positive message to the public, Jenkins said, that “the law isn’t supposed to change because of the shifting political winds.”
It also reflects the court’s decisionmaking procedures. The chief justice assigns each newly accepted case to one of her colleagues or herself to draft a tentative ruling, which is then circulated to the other justices for comments and revisions. Since state law requires a ruling within 90 days of oral arguments, the court schedules a hearing only after at least four justices agree on the outcome. The justices then hold an internal conference and exchange memos before issuing their decision.
At that point, “what differences remain among the justices regarding how a case should be resolved are usually ironed out through collaboration and compromise,” CantilSakauye said in a February article in the Loyola of Los Angeles Law Review. The occasional dissents, she said, “show that even extended and respectful discourse will not always yield a consensus.”
By contrast, when the U.S. Supreme Court accepts a case for review, each justice reviews the case individually. Compromises can still be worked out, as Roberts showed in the recent DACA ruling, but the process can also produce multiple opinions on each side of a case — sometimes making it nearly impossible to discern the court’s reasoning, said George, who argued cases in that court before his appointment to California’s high court.
But could legitimate voices of dissent be stifled by a judicial culture of consensus? As legal historians have noted, when rulings on topics like racial discrimination and denial of voting rights are later discredited, today’s dissenters can become tomorrow’s prophets.
“A dissent tells the losing side they were heard,” Werdegar, who spent 23 years on the California court, said by email. “It forces the majority to address points they may have preferred to ignore, or brings to light points they failed to address, and may speak to the future when attitudes may have changed or new perspectives emerged.”
But differences of opinion can often be resolved without sacrificing principles, she said.
“In recent years there has been a notable increase in collegiality and mutual respect among the justices, even when opinions differ,” Werdegar said. “Although friendliness would not lead a judge to change his or her considered view, it could lead a judge to listen to colleagues with a more open mind.”