Read Part 1 here
Three strikes and you’re out should apply to the Jerry
Brown Supreme Court, and in fact did. In 1986, an angry electorate
defeated three of the Brown judges up for retention election, and
fundamentally changed the Supreme Court. These three strikes are the
legacy of Brown’s court.
Strike One: Destroying of the court’s reputation for excellence and impartiality.
"The court’s national statue has waned under Bird" headlined the California Journal
in 1986 analyzing the reputation of the court in the year of Bird’s
second retention election. The court was very liberal under Brown and
Bird, but that was nothing new. It became a liberal court under former
Chief Justices Phil Gibson (1940-1964) and Roger Traynor (1964-1970).
But the court was then considered a trendsetter; that court was
liberal but not ideological. "There dwelt one giant (Traynor) and many
tall trees on the California Supreme Court of the 1950s and 1960s,"
wrote the director of the Earl Warren Legal Institute in 1986.
Brown and Bird transformed it from a liberal court to an
ideological court. Legal affair reporter Bob Egelko, now with the San Francisco Chronicle,
examined what happened to the court under Bird in a 1986 article. He
quoted one law professor as blaming both Govs. Ronald Reagan and Jerry
Brown for appointments based on "out and out ideology as opposed to
talent." Bird fit that perfectly, but so did other Brown appointment
such as Allan Broussard and Frank Newman, two liberal ideologues Brown
put on the court. Bird, Egelko wrote, had "largely abandoned the chief
justice’s traditional role as consensus builder."
But the Bird court also trashed precedence when it got in
the way of ideology. "I get the impression the court does not pay any
attention to precedents; It’s difficult for trial judges to know what
the law is," wrote one superior court judge in 1982. "The court’s
opinions are quite result oriented," observed a Stanford law
professor." "When a court becomes too activist, it necessarily enters
the political arena," said another. Renowned legal scholar Bernard
Witkin called the Bird Court, "The highest point of judicial activism
we’ve ever reached."
The upshot was that citizens no longer felt confident that
the court was impartially administering justice; rather it became a
battering ram for the most liberal political positions, as is evident
by the next two strikes.
Strike Two: Turning the justices into political hacks.
Nothing is more sensitive in politics than the issue of
redistricting, which decides the allocation of political power. Wise
courts have stayed out of this political thicket. In 1971, the Supreme
Court under Chief Justice Donald Wright faced a situation that Gov.
Reagan had vetoed the redistricting bill. The court allowed the
legislative districts to stand for one more election and ultimately
court masters drew new districts.
Bird faced exactly the same situation in 1982, when
Republicans qualified a referendum against the Democrats’ 1981
redistricting. But instead of following Wright’s nonpartisan
precedent, Bird’s court imposed the Democratic plan, later rejected by
the voters.
Bird, Broussard, Newman and a temporary justice she
appointed marched right into the political thicket to serve the
political needs of Democratic lawmakers. A year later they did the
same thing again, throwing GOP-sponsored redistricting initiative off
the ballot on the slimmest of legal grounds.
"The judiciary has an enormous stake in appearing to be
fair minded and neutral on political questions. I think some justices
have not been mindful of the importance of that," a Boalt Hall law
professor wrote after the redistricting ruling. Famed Democratic
Assembly Speaker Willie Brown put it more colorfully, thanking "Sister
Rose and the Supremes" for saving the Democrats’ bacon.
Strike Three: Arrogant disregard for the will of the people.
The California death penalty was declared unconstitutional
in 1972. That same year the legislature placed a measure on the ballot
to restore the death penalty. It passed with 68 percent of the vote,
and was strengthened by an initiative in 1978. There is no question
that the death penalty in the Bird years was constitutional; after all,
the United States Supreme Court had so held in 1976.
Yet the Jerry Brown-dominated court ruled application of
the death penalty unconstitutional in 61 of 64 cases before it, and
Bird ruled against the death penalty in all 64. One trick devised by
the Brown judges was to require "proof of intent to kill" as though
firing bullets into the head of victim was not enough. Bird and her
colleagues found a variety of ways to void death penalties no matter
how heinous the crime.
But it was not only the death penalty where Bird showed
contempt for the voters, and for the legislature for that matter. She
voted to overturn Proposition 13; fortunately her colleagues were more
measured and upheld the law. She voted to overturn a 1982 initiative
the Victims Bill of Rights, but her colleagues refused to go along, and
she voted to overturn California’s 1975 medical malpractice law.
Years later one of the court’s staunchest liberals, Pat
Brown appointed Justice Stanley Mosk, explained the difference between
himself and Bird, "I probably don’t like the death penalty any more
than she does. As a matter of fact, I think the death penalty is wrong,
that a person has no right to kill, and the state has no right to kill.
But the difference is that I took an oath to support the law as it is
and not as I might prefer it to be, and therefore, I’ve written my
share of opinions upholding capital judgments."
Bird’s behavior led two thirds of the voters to reject her
in the 1986 retention election, along with two other Brown appointees,
Justices Joseph Grodin and Cruz Reynoso. That may have been unfair;
Grodin was something of a moderate and Reynoso was the state’s first
Latino justice. But they were caught up in the public’s revulsion with
Bird and paid the price.
Ridding the court of Brown’s appointees was the toxic
California’s judiciary needed. It has not been a political battering
ram these past 24 years; none of the appointees of Govs. George
Deukmejian, Pete Wilson, Gray Davis or Arnold Schwarzenegger was ever
challenged at the polls.
Jerry Brown owes the people of California an apology for
nearly destroying their Supreme Court, and he needs to assure the
voters he will not appoint out of control ideologues to the court if he
re-elected governor.