The California Supreme Court's 2009-2010 Term: the "george Court" Comes to a Close

• Publication year: 2010
• Pages: 02

California Bar Journal 2010.

CBJ - September 2010 #02. The California Supreme Court's 2009-2010 Term: The "George Court" comes to a close

The California Lawyer
September 2010

The California Supreme Court's 2009-2010 Term The "George Court" comes to a close

By Clark Kelso

ANALYSIS

The California Supreme Court's 2009-2010 term will be remembered as the year Chief Justice Ronald M. George announced his intention to bring his distinguished career of leadership and public service to a close. What a remarkable career it has been. Not since the great Chief Justice Roger Traynor has California been blessed by such a towering judicial figure.

LEADERSHIP ON THE SUPREME COURT

During his 19-year tenure on the Supreme Court, 14 years as its chief, Ron George successfully re-established the preeminence of California's highest court as one of the leading state courts in the country. The court's national reputation and prominence had taken a steep dive in the late 1970s and early 1980s, and the failure of three justices to win their retention elections in 1986 further damaged the court's prestige and credibility. In the aftermath of the 1986 election debacle, the court swung hard to the right.

Chief Justice George

Chief Justice George slowly but surely led the court back to the center, and from that position of strength, the court re-emerged in this decade as a jurisprudential and constitutional leader. Its jurisprudence has been marked by fundamental themes that express the very essence of a judiciary that is independent yet appropriately restrained and respectful of the people's political power and the powers of the other branches of government.

RESPECT THE VOTERS

The court has repeatedly demonstrated deference to the voters in its approach to the interpretation and review of voter initiatives. The most obvious recent example was the court's decision in 2009 upholding Proposition 8, which limited marriage to persons of different genders. In Strauss v. Horton (2009) 46 Cal.4th 364, the court upheld the power of the voters in Proposition 8 to overturn the court's decision of only one year earlier that same-gender marriage was constitutionally protected (seeIn re Marriage Cases (2008) 43 Cal.4th 757). The court properly held that, under the state Constitution, the voters had the final say.

Whether Proposition 8 survives under the federal Constitution was not litigated in Strauss, and that issue is now squarely before the Ninth Circuit Court of Appeals in an appeal of Judge Vaughn Walker's decision striking down Proposition 8 on federal equal protection grounds. The conventional wisdom is that the United States Supreme Court will inevitably grant review in this case, but I suspect that depends very much on what the Ninth Circuit does. If the Ninth Circuit affirms, Supreme Court review would be a near certainty; by contrast, if the Ninth Circuit reverses and upholds Proposition 8, the four reliably liberal votes on the Supreme Court might hesitate to grant review fearing that the high court may not be ready to rule in favor of gay marriage. The fact that an issue is important does not mean it is necessarily ripe for review by the U.S. Supreme Court.

Returning to the California Supreme Court, we also saw the court defer to the voters in the 2000 term by broadly interpreting and implementing the provisions of Proposition 209, which forbids discrimination or preferential treatment in public contracting, education and employment...