A dozen years ago, conservative activists, outraged at the liberal, permissive rulings of a California Supreme Court shaped by Governor Jerry Brown, mounted a massive campaign to oust several justices – while many liberals sat on their hands. After a well-funded campaign focused on their death-penalty reversals, Chief Justice Rose Bird and colleagues Joseph Grodin and Cruz Reynoso were removed, and Governors Deukmejian and Wilson recast the court with more business-friendly and prosecution-minded characters. Death-penalty reviews flipped from 90 percent reversals under Bird to 90 percent affirmations under her successor.
So are conservatives happy now? Far from it. This fall, in a grassroots effort largely beneath the media's radar range, right-wing activists are again calling for judicial heads, this time those of Chief Justice Ronald George and Associate Justice Ming Chin, both Wilson appointees. The Christian Coalition and the California Republican Assembly charge the pair with the sin of “judicial activism,” but what's galvanizing the troops is the perennial bugbear of the religious right – abortion.
California's Legislature passed a law in 1987 requiring parental consent for minors seeking abortions, but this was quickly challenged in court by opponents as an infringement on privacy rights. In April '96 the court ruled 4-3 (with George in the minority) against the challengers – but then two justices on the prevailing side resigned. They were replaced by Ming Chin and Janice Brown, while George stepped up to the chief-justice slot vacated by Malcolm Lucas. In an unusual move, the court then voted to rehear the case and, with Chin's fourth vote, the parental-consent requirement was, a year later, found unconstitutional after all. The outcome would have been a bitter pill for pro-lifers in any case, but after tasting a momentary victory, the U-turn loss became impossible to swallow.
This decision, seen as an infringement of parents' rights, will be highlighted in the Christian Coalition's voter guide. Coalition spokesman David Spady says about 4 million copies of the guide will be circulated through some 5,000 churches on the last two Sundays before the election. The guide also focuses on George's vote that a landlady's religious views do not give her a right to refuse rentals to unmarried couples (Chin was not on the court for this decision).
Joining the religious right in opposition to the justices are some advocates of minimal government who charge that the court trespassed on property rights in sustaining Coastal Commission decisions. The California Republican Assembly will sound both notes in the million pieces of literature it plans to put out opposing George and Chin. “The real issue is abuse of power,” says Mike Spence of Citizens for Judicial Integrity, a pro-life campaign group that is trying to raise $100,000 for a radio ad campaign. “They are judicial activists, making law instead of interpreting it.”
Two less likely candidates for the title of “judicial activist” are hard to imagine. George is a longtime prosecutor who, as a Superior Court judge, presided over the trial of hillside strangler Angelo Buono. If George has departed from cautious mainstream legal tradition at all, it has been in a conservative direction, especially at the expense of criminal defendants. A 1993 decision permitted convictions to be upheld even when coerced confessions were used at trial; the next year he voted to expand the admissibility of a defendant's past criminal record and, in a juvenile case, lowered the standard for the prosecution to establish wrongful intent.
Chin, a Republican, an Army captain whoa served in Vietnam, and a Catholic educated at a Jesuit-run law school where he served on the board of trustees, is a former Court of Appeal judge with a pronounced law-and-order bent. He wrote a 1997 decision limiting juveniles' rights against self-incrimination by making conversations with their probation officers admissible at trial. Disagreeing with the majority of the court, he voted to allow employers to require drug tests of candidates for promotion.
Paramount among the several ironies at work in this conservative court challenge is the fact that, should the right-wing coalition succeed in removing this pair, they may well find themselves losing ground on the high court. Theoretically there's a long-shot means for Wilson to fill any vacancy produced – the defeated justices would have to resign immediately, allowing the lame-duck governor and attorney general to rush through a new appointee. But if normal procedure is followed, and if, as polling indicates, Gray Davis is the next governor, then the right would have paved the way for Davis to begin rebuilding a liberal state court.
George was quick to react to the anti-confirmation campaign, sending letters to “friends” last March, and has raised close to $750,000 to buy endorsements from slate mailers around the state. Chin's campaign, drawing from the same sources, but with additional help from friends in the Asian-American community, has raised only slightly less – about $650,000 as of October 15.
The justices may need every dollar they can raise. While the campaign against them is not well-funded, it starts with the cushion provided by the 30-some percent of the electorate that tends toward a knee-jerk “no” on all judicial candidacies. With no organized opposition in his last confirmation vote in 1994, George reaped only 57 percent yes votes, so November will be no landslide.
Though 20-some GOP state legislators have lined up behind the ouster drive, pillars of the GOP establishment are still in the justices' corner. Ex-Governor Deukmejian co-chairs George's campaign committee; senatorial candidate Matt Fong and members of Wilson's inner circle are among his backers. With Republicans split in this fratricidal battle between ultraconservatives and moderate conservatives, the outcome will depend largely on how Democrats vote; yet this is a race in which liberals have no horse. Senator Dianne Feinstein lent her name to the George campaign as co-chair, and Assembly Speaker Antonio Villaraigosa and prospective governor Gray Davis have endorsed him as well, but progressives may calculate that, with Davis seemingly headed toward victory, they have nothing to lose by giving a Democrat a chance to fill court vacancies.
Trial lawyers, a mainstay of liberal campaigns, are not enamored of the George court. “California once had the nation's trailblazing court in terms of consumer safety,” says Browne Greene, former head of the Consumer Attorneys of California, “but I'd rate the George court a 4 or 5 on consumer protection.” Greene charges the court “gave its blessing” to the disappearance of medical records, allowing defendants to evade medical-malpractice claims by “destroying the smoking gun.” George was part of a majority holding that parents whose infant was injured by erroneous dosage directions on medication had no right to sue the responsible pharmacy for emotional distress. According to George and his colleagues, the pharmacy's responsibility to patients applied only to the child, not to its parents.
Civil libertarians, let alone aficionados of recreational-drug use, have nothing to thank these jurists for. George wrote the majority opinion upholding pre-employment drug testing for Glendale city job applicants. And the court rebuffed (with only Mosk dissenting) a suit by Stanford University athletes challenging the National Collegiate Athletic Association's random-drug-test policy.
The rights of employees have not thrived under the George regime either. George was part of a 4-3 majority limiting remedies when employers use fraud to terminate employees.
Not all the court's critics have an ideological slant. Among legal scholars and veteran attorneys, the George court gets poor to fair reviews for effectiveness and clarity of legal opinions. UC Berkeley law professor Stephen Barnett takes no particular issue with the outcomes of its decisions, but argues that the opinions are much too long-winded (three times the length of opinions in the '60s) and (perhaps for that reason) too few.
The court is also criticized for its frequent resort to an unorthodox process called “depublication” in which a lower-court decision the Supreme Court doesn't like is left standing in that particular case but struck down as future precedent. This saves the Supreme Court the bother of actually writing a decision but leaves the law in the area muddled. “It's a cheap way out,” says Loyola law professor Karl Manheim. “If it's that bad they ought to correct it for the parties involved.”
But many of their critics, surprisingly, will give the justices thumbs-up on Election Day. For consumer counsel Greene, the principle of “independence of the judiciary from the storms of popular opinion” overrides disagreements over specific decisions, a view echoed by professor Manheim and others. “But this court's not independent,” responds National Lawyers Guild veteran Hugh Manes. “It's been loaded with reactionaries for the protection of business, and it's undermining legal principles. More and more – killing safety rules, overtime limits – little people who are suing business are being told their claims aren't welcome.”