The transformation of the California Supreme Court: 1977-1997.

AuthorCulver, John H.
PositionState Constitutional Commentary

Most of our understanding of judicial behavior stems from research on the federal courts,(1) although there is a growing body of literature on this topic in the state courts.(2) The argument for paying more attention to the state judiciary, particularly the courts of last resort, is made convincingly by Melinda Gann HaH and Paul Brace:

[s]tate supreme courts are a comparativist's paradise, presenting

variation in every major determinant identified to

date of judicial behavior. Within these institutions are individual

decision makers with highly diverse backgrounds, experiences,

and values .... Finally, the American states, the

environmental context within which state supreme courts

operate, offer considerable diversity in such features as partisan

competition and social complexity.(3)

The G. Alan Tarr and Mary Cornelia Aldis Porter volume on state supreme courts has added to our understanding of how these courts can impede as well as promote political and legal changes in the states.(4) Central to their analysis of three state supreme courts is the pivotal role played by jurists, especially in Alabama and New Jersey, who were instrumental in converting passive courts into dynamic and professional tribunals.(5) Edward N. Beiser's assessment of the Rhode Island Supreme Court is instructive because of the focus on the internal cohesiveness of that five-member court.(6) Much of the harmony among the justices is attributed to their similar role orientations, and the absence of. cases posing major constitutional questions that could produce divisiveness based on differing judicial philosophies.(7)

In contrast to the Rhode Island high court, the California Supreme Court has experienced some turbulence due to the personalities of the justices themselves, and because many of its decisions have run counter to popular opinion on public policy issues.(8) More distinctly, the California high court has not been reluctant to tackle major issues of legal, political, and social importance.(9)

The focus of this study is the California Supreme Court, an institution which has undergone extraordinary change over the past several decades encompassing the administrations of three governors: Jerry Brown (D: 1975-1982), George Deukmejian (R: 1983-1990), and Pete Wilson (R: 1991-1998).(10) The court was transformed during these years because of the new justices who were to serve on it, the decisions they enunciated on compelling legal, political, and social issues, and in response to the larger currents of change that affected the state as a whole.(11) During Brown's two terms as governor, he was able to place seven justices on the sevenmember high court, while the latter two Republican governors appointed a total of twelve.(12)

Much of the public criticism directed at the court developed while Rose Bird, a 1977 Jerry Brown appointee, was chief justice.(13) As will be discussed, the Bird Court became the focus of criticism from lawmakers, law and order organizations, and the public because many of its decisions were regarded as overly protective of criminal rights and too restrictive for businesses.(14) Since the Bird Court (1977-1986) is a central reference point in the politics of the court over the past forty years, frequent mention is made to the pre-Bird Court and the Lucas Court that emerged after 1986 when Bird and two other Brown-appointed jurists were denied new terms on the bench; these three vacant positions were then filled by Governor Deukmejian who had campaigned against the defeated jurists' continuation on the court.(15)

It is generally assumed that a change in the jurisprudential direction of the court has occurred because of the appointment of justices to the court by governors with distinctly different political philosophies.(16) Indeed, the substantial body of literature on the politics of judicial appointments and on judicial decisionmaking is in agreement that: (1) executives appoint judges who reflect their own values on important legal, political, and social issues; (2) there is a general consistency to the decisions of individual justices, despite the fact that the unexpected position is sometimes taken; and (3) decisionmaking is a result of numerous factors both internal and external to a court.(17) An examination of some of the major decisions of California's high court enables one to compare the tenor of the court's decisions at different time periods. Moreover, a comparison of the socioeconomic characteristics of the justices makes it possible to determine if individual governors emphasized different criteria in making high court appointments.

Since a constitutional revision in 1934, appointments to the state supreme court and courts of appeal have been made via a backwards Missouri Plan mechanism unique to California.(18) Under this process, the governor makes the appointments to an appellate court vacancy, the nominee is then confirmed by the three,member Commission on Judicial Appointments, and subject to a retention vote by the public at the next gubernatorial election.(19)


    Through the years prior to Rose Bird's tenure on the court lack a convenient label, the court itself was regarded as an innovative, independent, and activist tribunal.(20) Indeed, many of the controversial decisions of the Bird Court were a continuation of judicial doctrines initially set forth by a series of progressive chief justices since 1940.(21) But, the liberal courts in the pre-Bird period were able to stay out of the fray of politics save for several decisions that attracted publicity because they were at odds with prevailing public opinion.(22) In one of these, the 1966 decision in Mulkey v. Reitman,(23) the court held that realtors and apartment managers could not discriminate on the basis of race in the sale or rental of housing.(24) That decision, upheld by the Federal Supreme Court,(25) invalidated an initiative approved by the California electorate in 1964 which allowed for racial discrimination in the sale and rental of housing.(26) In a second decision that garnered public attention, the California Supreme Court ruled in 1971 that education was a "fundamental interest" and required the legislature to equalize expenditures per public school child throughout the state.(27) A third example of a pre-Bird Court ruling that was contrary to prevailing public sentiment occurred in 1972, when the justices held the state's death penalty unconstitutional.(28)

    As one legal scholar noted about the pre-Bird courts:

    [i]n the fifties and beyond, controversial judicial decisions

    had been defended by a broad spectrum of politicians on the

    ground that what the courts ordered was the law and deserved

    support even if the substance of a decision were distasteful.

    As time went on, however, political leaders tended

    to defend particular decisions only if they agreed with the

    result. As a consequence, the California court became identified

    with the liberal side of the political spectrum, and attacking

    the court became easier for the extreme right as

    moderates tended to withdraw from the debate.(29)

    The linkage of the change in the political climate in the state corresponds to the change in the public's view of the state supreme court. By the early 1980s, the Bird Court was perceived as a tribunal stacked with liberal justices, appointed by a liberal governor (Jerry Brown), whose decisions, particularly in criminal law, collided increasingly conservative electorate.(30)

    The Bird Court crumbled with the 1986 general election.(31) For the first time since 1934, when retention elections were introduced for appellate justices in the state, Rose Bird and two other Jerry Brown-appointed justices, Cruz Reynoso and Joseph Grodin, were voted off the court.(32) Their defeat gave Governor George Deukmejian (R: 1983-1990) the opportunity to appoint three new jurists to the court to join the two other justices (Lucas and Panelli), whom he had placed on the bench during his first term in office.(33) Deukmejian elevated Lucas, his former law partner, to be chief justice.(34) When Deukmejian left office in 1991, only two justices on the court were not his appointees: Stanley Mosk, a Governor Pat Brown (D: 1959-1966) appointee, who has served on the court since 1964, and Allen Broussard, appointed to the court by Jerry Brown in 1981.(35) Broussard, a Bird Court holdover, resigned from the bench in 1991.(36) Since then, Governor Pete Wilson has been able to place three of his nominees on the court.(37)

    Table 1 illustrates the turnover among the justices on the California Supreme Court and the administrations of the three governors who appointed their replacements to the court from 1977 to 1997.(38) This brief historical background is intended to convey four main points. First, the California Supreme Court had a tradition of independence and progressivism before Rose Bird joined the court in 1977.(39) Second, while much of the controversy associated with the Bird Court concerned decisions, it also reflected the growing social and political retrenchment of the California electorate beginning in the late 1970s.(40) Third, the majority of decisions by the Lucas Court did not provoke the negative reaction associated with numerous Bird Court rulings.(41) Fourth, while a majority of the justices on the Bird Court were appointed by a Democratic governor (Jerry Brown), those on the Lucas Court (1986-1996) and the emerging George Court, have been appointed by Republican governors (George Deukmejian and Pete Wilson).(42)



    According to James L. Gibson, "judges' decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do."(43) This summary statement takes into account the multivariate explanations of judicial behavior by linking the macro-level attitudinal models...

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