I will not offer an opinion on whether the California Supreme Court will or will not invalidate Proposition 8. Others are having that debate throughout California, including on the pages of Fox and Hounds Daily.
However, I will venture a guess that the legal verdict could lead to political consequences for some of the justices who make that decision.
Two of California’s Supreme Court justices come up for retention elections at the 2010 general election. One of the two is Chief Justice Ronald George who wrote the majority opinion in the narrow 4 to 3 decision recognizing the right for homosexuals to marry. The other justice on the 2010 ballot is Ming Chin who dissented from the George opinion.
The California electorate votes to retain or reject a Supreme Court justice every twelve years. The justices do not “run” against an opponent. The voters choose Yes or No on whether to keep a justice on the job.
In this highly emotional and watched case on gay marriage, four justices told the other three what the law is. The switch of one vote changes the law. And, that particularly puts the Chief Justice in the spotlight.
Whatever vote the Chief Justice makes on the lawsuits brought to invalidate Proposition 8 could likely rally foes of the opinion to mount a campaign to throw him off the court. Both sides are passionate and making a point at the ballot box may seem a way to let out their frustration.
Chief Justice George faced a campaign against his retention before. In fact, so has Associate Justice Chin. Both were on the 1998 ballot. After voting to strike down a state law requiring parental consent for a minor’s abortion, right-to-life groups mounted a campaign to defeat George and Ming at their retention elections. Both justices raised campaign chests, something out of the ordinary for these types of votes, and both prevailed.
Of course, Californians did toss three justices off the bench in 1986, including Chief Justice Rose Bird.
Will either the pro or anti gay marriage sides try to mount a campaign against retention? George will be more visible because of his role as chief and because he wrote the majority opinion declaring a right to gay marriage cannot be denied. If he holds that position despite Prop 8 passing, the majority who passed the measure could easily be energized. On the other hand, we have seen the street demonstrations that believers on the No-on-8 side can muster. There would be passion for getting behind a campaign to remove the chief if he reverses his position.
Will the same be true if the majority upholding or invalidating Prop 8 is solid, say 5-2 or 6-1? That may take the sting out of any protest but I still believe an effort would be mounted. Whether it is sustained or not is another matter. The successful effort to remove Rose Bird and two of her colleagues was spurred on by the Republican Party, which protested many decisions made by the Bird Court. I do not see either political party engaging in an effort to defeat a judge over one decision.
Of course, none of these political concerns may matter to the justices. They will tell us that they make their decisions based on the merits of the case. Have we made progress from the comment uttered by Peter Finley Dunne’s character, Mr. Dooley, over a century ago: “The Supreme Court follows the election returns?”
Maybe.
But, then there is another consideration about the justices’ place on the 2010 ballot. They may not be there. George will be 70 years old that year, Chin just a bit younger. They may decide its time to hang up the robes.