OF GREAT USE AND INTEREST: CONSTITUTIONAL GOVERNANCE AND JUDICIAL POWER - THE HISTORY OF THE CALIFORNIA SUPREME COURT.

• Author: Warner, Donald
• Position: Book review

1. INTRODUCTION

   Published under the auspices of the California Supreme Court Historical Society, this is a substantial and valuable effort by six authors (one of whom is also the editor) to provide a comprehensive history of the first 160 years--from 1850 through 2010--of the California Supreme Court. This Court has been, at times, among the most influential of the state courts of last resort, (1) which would make almost any treatment of its history interesting to at least a few readers. Fortunately for every reader of The Journal, this book offers more than the superficial information that one might expect in the typical commemorative volume. It is, on the whole, a valuable contribution to the literature of American legal history.

   The book will be of great use and interest to several groups of potential readers: jurists, especially those in the twenty-plus states that provide for legislation by ballot initiative; California lawyers; (2) appellate lawyers from every state, but again particularly those in the initiative states; and teachers and students of American legal history.

   The text is divided into seven chapters, each covering a separate period in the history of the Court. The time periods covered in each chapter are generally (but not always, as described below) well chosen.

2. THE COURT'S 160-YEAR HISTORY IN SEVEN CHAPTERS

   1. Chapter One: 1849-1879

      This chapter begins with the establishment of the Court and of the State government, starting at the time of the first Constitution, which was negotiated and ratified in the full heat of the gold rush. It continues with the story of a series of three-Justice Courts whose membership changed almost annually. Through the actions of those Courts, the judiciary sorted itself out in the wake of the tremendous effects of the gold rush. Meanwhile the rest of the government, as well as civil society as a whole, was doing the same thing. Several of these early Justices were men for whom the label rough-and-tumble would be, if anything, an understatement. As one (admittedly extreme) example, take David S. Terry, an early Chief Justice, who in the course of a long career as lawyer and jurist: (1) was imprisoned and tried for attempted murder by the San Francisco Vigilance Committee; (2) killed a sitting United States Senator in a duel; and (3) was himself killed by a United States Marshal who was acting as the bodyguard for Justice Stephen Field of the United States Supreme Court. (3) After chronicling the work of the Court during its earliest years, the chapter ends with the passage of the state's second--and present--Constitution.

   2. Chapter Two: 1880-1910

      The last part of the nineteenth century was in California a time of huge political turmoil that was reflected in the work of the Court. Depending on one's outlook, any one of a panoply of villains can be deemed responsible for that upheaval and instability: Chinese laborers and launderers, too-dominant railroads, demagogic politicians, or polluting hydraulic mining companies. Whatever its cause, almost all of that turmoil seemed to make its way to the Court. In this period the legal issues surrounding the State's most valuable resource, water, emerged in litigation before the Court--and they have never left. (4)

   3. Chapter Three: 1910-1940

      The progressive revolution of the 1910s hit California as hard as it did anywhere, and brought with it the ballot initiative, a magic bullet or a poison pill, depending on one's viewpoint. Wherever the reader comes down on that question, the Court has had to wrestle with the initiative during term after term, throughout the century-plus since its first appearance in the state. (5) This chapter also covers the Great Depression, which began the process of the slow grinding down of the Court's traditional conservative stance. (6) The California variant of this trend would culminate decades later in the so-called liberal Courts covered in Chapters Four and Five.

   4. Chapter Four: 1940-1964

      In the year 1940, the elevation of a new Chief Justice, Phil S. Gibson, was followed quickly by the appointment to his vacated Associate Justice seat of a University of California-Berkeley law professor, Roger Traynor. Their appointments jump-started a period of thirty years when the Court, under the leadership of these two men, became the intellectual and liberal bellwether of the state courts of last resort. In the area of tort law, California Supreme Court opinions under Gibson and Traynor established new rules for negligence, (7) charitable immunity, (8) emotional distress, (9) and products liability (10) that were often followed in other states. The Gibson Court prefigured the United States Supreme Court's Shelley v. Kraemer (11) decision about restrictive covenants, (12) and held the State's anti-miscegenation laws to be in violation of the Fourteenth Amendment, (13) nineteen years before the United States Supreme Court decided Loving v. Virginia. (14) It was out in front in criminal law, as well, in the areas of diminished capacity (15) and the exclusionary rule. (16) In its twenty-four years the Gibson Court set the table for Justice Traynor's elevation to Chief Justice in 1964.

   5. Chapter Five: 1964-1987

      This long chapter is the heart of the book, and a small...