The California Supreme Court is one of the most influential state courts in the nation. A little context is necessary to understand how this occurs. First, the Court has been influential with innovative reasoning that effectively addresses a new legal question. This will, of course, affect the people of California since the case arises from a state case. Second, every state case can serve as a precedent for state or federal courts to use as a guide for decision-making. Two areas exemplify this leadership: civil rights and product liability.
The California Supreme Court led the nation with many decisions that promoted civil rights. Many racist laws were judged unconstitutional in California, and then similar actions were taken subsequently by other state and federal courts. For example, in the twentieth century, many areas of Los Angeles County became segregated as new housing developments limited who could buy or rent a property using racial covenants. A covenant is a regulation placed on the buyer of a property as a condition of ownership. One common covenant was that the property could only be sold to white purchasers. Even though the US Supreme Court had banned the use of racial covenants in Shelly v. Kraemer (1948), realtors continued to limit sales and rentals to only white people in many neighborhoods. In reaction, in 1963, California Governor Pat Brown pushed the Rumford Fair Housing Act through the state legislature, which banned racial housing discrimination in apartment dwellings of five or more units. In retaliation, the California Real Estate Association sponsored Proposition 14 to overturn the Rumford Act, arguing that freedom of choice should dictate real estate transactions rather than the Fourteenth Amendment. The California electorate agreed, passing Proposition 14 by 65%. A Black couple who had been denied an apartment sued, arguing that the new constitutional amendment violated their civil rights. Soon after, in Mulkey v. Reitman, the California Supreme Court ruled that the recent California constitutional amendment violated the Fourteenth Amendment of the US Constitution. Realtors appealed the case to the US Supreme Court, reaffirming the California Supreme Court decision in 1967 (Scheiber, pp. 356-59).
Another area where the California Supreme Court led the country is in product liability law. One of the leading justices on the Court was Roger Traynor, an associate justice appointed in 1944 and the Chief Justice between 1964 and 1970. In 1944, in Escola v. Coca-Cola Bottling Co.,Traynor introduced the idea of strict liability to the Court. When a product is judged defective, even if its producer had no intention of hurting anyone, they are still liable for any damages suffered by its use. This notion of strict liability was soon emulated in state courts nationwide.
In short, the California Supreme Court is important. As the third branch of government, it functions as an essential constitutional check on the other branches. That independence, of course, is not absolute. The justices and judges are appointed by political leaders and confirmed by the people. Any of them may be rejected in a retention election or recalled by the electorate. Just such an event occurred in 1986 when the California electorate rejected three judges in a retention election. The most controversial justice was Chief Justice Rose Elizabeth Bird. Studying the career of Justice Bird and her rejection by California voters helps us better understand our own philosophies regarding the judiciary's proper role in the political system.
For Your Consideration
The Story of Chief Justice Rose Bird and the Retention Election of 1986
In the eyes of the Framers of the US Constitution, the ideal judiciary is entirely independent of politics. The judges of the highest Court of a state, like those of the US Supreme Court, should function as referees, checking to ensure that the actions of the legislature, the Governor, and the people are constitutional. They should be above politics, representing the state constitution rather than any faction or party.
California Progressives at the turn of the twentieth century were skeptical of the impartiality and objectivity of judges. Judges, after all, had to be appointed; they are ambitious, and given they are but human, they are likely to be tempted by the vagaries of public opinion rather than adhere to the idealistic standards of the Framers. So how could judges be held accountable to ensure they responsibly fulfilled their roles? The remedy is to have the people confirm the nominations of justices, make these elections nonpartisan, and retain elections for appellate and supreme court justices if they wish to remain in office. Thus, our current system (dating from amendments to the Constitution in 1934) seeks a balance between judicial independence and accountability. Most of the time, the people ratify the status quo, retaining incumbent judges and confirming gubernatorial appointments. However, in times of political ferment, judges may find themselves in the center of a political storm. Just such an event occurred with the retention election of Chief Justice Rose Bird in 1986. The story illuminates the stress between judicial independence and accountability. If you were voting in 1986, would you have retained Justice Bird? Consider the following history.
Justice Bird's biography did not fit the typical mold of a judge. She was not from a wealthy, well-connected family; she was not male; she did not ascend through the ranks of a lower court or have many other political positions. Her story shows how she was a pioneer for women and people of modest means.
Bird grew up poor, raised by her single mother in Arizona and then in New York. She said that one of the central lessons that she learned from her mother is the importance of becoming self-sufficient and that the key to achieving this is education. She studied hard and flourished in college, attending UC Berkeley Law School with just a handful of other women and graduating near the top of her class. She had trouble finding work as an attorney (believing that it was because of her gender). Eventually, she began her career as a deputy public defender in the Santa Clara County Public Defender's office. There, she gained valuable experience and started to get involved in politics by volunteering (among other duties, as a chauffeur) for then-gubernatorial candidate Jerry Brown. Smart and assertive with her views, Brown appointed her to his transition team and then catapulted her into prominence when he appointed her Secretary of the Agriculture and Service Agency, one of the most influential positions in his administration (Cairns, ch. 1-2).
As detailed in the previous chapter, Governor Jerry Brown sought to break with the traditional Democratic party establishment by appointing fresh faces with new ideas, more women, and people from many diverse cultural backgrounds who sought to address contemporary problems in new ways. Bird rapidly adapted to her new political role in the administration, gaining prominence by shepherding the Agriculture Labor Relations Act through the state legislature, dramatically improving farm laborers' working conditions and bargaining power. Her front-page success led the Governor to exert his counter-establishment proclivities by appointing her in 1977 to become the next California Supreme Court Chief Justice (Cairns 53).
Just as her appointment to be Agricultural Secretary broke tradition, Bird's appointment to the Court was also groundbreaking. She was relatively young with no judicial experience, a woman during a time when few women were attorneys, let alone judges, and she was very liberal. The latter would not represent a massive break from the Court's record because the Court, for decades, had broken conservative precedents and become a judicial trendsetter nationally. Nonetheless, beginning with her confirmation hearings before the Commission on Judicial Appointments, Bird's tenure at the Supreme Court was turbulent.
She was too soft on crime. She was too liberal. She did not have enough experience. However, the Commission did not doubt that she was an intelligent and excellent administrator. Ultimately, the Commission confirmed her 2-1. Justice Bird went before the voters a year later, winning just 52% of the vote, an election which justices usually easily win. The controversies about her from the confirmation had solidified into considerable electoral opposition (Cairns ch. 4).
By the late 1970s, the political climate in the state was changing, as was that of the nation. Many Americans had grown tired of liberalism. The economy was stagnating with higher inflation and fewer job opportunities. Crime was up, and many more Americans agreed with a conservative law and order critique that courts needed to get tough. In the 1970s and 1980s, the death penalty was incessantly debated. Liberals argued that it was barbaric, disproportionately administered to poor and nonwhite defendants, and ineffective as a deterrent. Conservatives blamed the increase in crime on liberal sympathies for the accused and perceived the death penalty as a reasonable punishment for a series of heinous crimes splashing across the headlines with sickening regularity.
By law, the California Supreme Court must review every death penalty conviction. As death penalty cases grew, this job loaded up almost a quarter of the docket. Over and over again, Justice Bird and other justices found errors in lower court proceedings significant enough to overturn the penalty. The Court reviewed sixty-four cases between 1979 and 1986 and affirmed only 7.8%. Not one did Bird affirm.
By the November 1986 elections, conservatives in California had had enough. They led a campaign to oppose the retention of not only Justice Rose Bird but also of Cruz Reynoso and Joseph Grodin, two other justices who also often rejected the death penalty (Uehlmen). But the campaign ads full of heartfelt stories of Californians mourning the loss of their children to murderers were not paid for by ordinary people worried about crime. No, they were paid for by California industrial and agricultural interests who had an ulterior motive: get rid of the liberals on the Court and select new justices who would support businesses over consumers or workers (Schreiber 480). For decades, the Court had sided against businesses in cases involving employment, the environment, and consumer rights. Now, if three justices were gone and a Republican was elected Governor, the Court might change its stripes.
The Chief Justice did not respond with an effective campaign. She perceived her role as representing the Constitution, focusing on her job, and being above politics. What little campaigning she engaged in consisted of seeking to educate the public about the Court's role in safeguarding civil rights and civil liberties. She hoped that the California voter would appreciate the role of an independent judiciary. Unfortunately, the California voter was more concerned about rising crime than constitutional issues and removed her with a 2:1 vote, with Justices Grodin and Reynoso also losing their jobs.
After she left office, the California Supreme Court reversed course and, in seventy-one cases between 1987 and 1989, affirmed 72% of them. Sometimes, the administration of justice depends on who is judging. Thrown out of office, Bird found no legal opportunities for herself. She took care of her ailing mother, worked as a volunteer, and died of cancer in 1999 at the age of 63.
Two lessons emerge from the story of Justice Rose Bird in the 1977-1986 period. One is that the Courts occupy a point someplace between the touchstones of independence and accountability. Independence is not the ideal in California; accountability is demanded, and if a justice strays too far away from public opinion, the processes of confirmation and retention may force more adherence to public opinion. Second, as the first woman on the Court, let alone as Chief Justice, Justice Bird was a pioneer for women's rights. She broke new ground for the next generation of female attorneys, who would become far more numerous, but it was a lonely job for her that required a thick skin to endure constant scrutiny and criticism.
What are your reactions? First of all, do you believe retention elections for judges are wise? Before 1934, justices ran in party elections rather than a yes-no vote, so this system represents the relative depoliticization of the process. Should the positions be even more depoliticized such that the state Supreme Court resembles the US Supreme Court with lifetime appointments? Second, if you were voting in 1986, would you have voted for or against Justice Bird? Why?
