Academic journal article Albany Law Review

The Transformation of the California Supreme Court: 1977-1997

Academic journal article Albany Law Review

The Transformation of the California Supreme Court: 1977-1997

Article excerpt

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. …

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