Shifting Alliances Tally Up to More Unpredictable Ca Supreme Court
| Publication year | 2016 |
| Pages | 01 |
John Roemer, Special to the Bar Journal.
After decades of domination by conservatives, the newly reconstituted state Supreme Court is now approaching political parity.
It's not just the three fresh Democratic justices appointed by Gov. Jerry Brown who have altered the high court's makeup. Goodwin H. liu, appointed in 2011, was joined last year by Mariano-Florentino Cuellar and Leondra R Kruger.
That made for a 4-3 divide that still favors the Republican appointees: Tani G. Cantil-Sakauye, the chief justice, Kathiyn Mickle Werdegar, Ming W. Chin and Carol A. Corrigan. But it is Werdegar's political odyssey leftward - not the new appointees - that is shifting the bench calculus.
In themselves. Brown's appointments have uncanny echoes of the 1970s and '80s, during his first term as governor. Brown placed seven justices on the court, three of whom were ousted from the bench in a politically charged 1986 retention election focused on Chief Justice Rose E. Bird's rejection of the death penalty.
Now Brown has a second chance to remake the court in a state where aversion for capital punishment has steadily progressed. A 2014 poll found that 56 percent of voters said they still support the death penalty, but it was a sharp drop from 68 percent in 2011. The issue could come before voters this year. Two competing voter initiatives are vying to get on the ballot.
The surprise is that the most outspoken justice on the topic has been Werdegar, who wrote for a unanimous court last year that the Eighth Amendment's ban on cruel and unusual punishment could potentially be extended to include the lengthy, arbitrary delays in executions that have plagued California's death penalty system.
Although the court affirmed the conviction and death sentence of a man convicted of robbing and shotgunning to death a groom on the eve of his wedding, Werdegar's lengthy opinion gave a thorough, respectful airing of the delay claim.
"But although we have consistently and recently, rejected the Eighth Amendment/delay claim," she wrote, "doctrine can evolve." The concept of cruel and unusual punishment, she added, ratified in the Eighth Amendment in 1791, "is not a concept carved in l8th-the century stone." Rather it "must draw its meaning from the evolving standards of decency that that mark the progress of a maturing society," she said...
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