Supremes in the Balance
Jerry Brown and the future of California’s highest court
California’s Supreme Court was once the nation’s most respected and influential state judicial body. Its opinions were collected in textbooks and pored over in law schools from coast to coast. That iconic status began to erode in the 1970s and has deteriorated for the most part ever since. In recent years, the California Supreme Court has become a joke. If he wins reelection in November as expected, Governor Jerry Brown will have a chance to shape the court for years to come. His appointments will determine whether the court moves toward greater moderation or continues the leftward judicial trend that began in his first tenure as governor, from 1975 to 1983.
Brown appointed three activist liberals to the seven-member court during that period. Chief Justice Rose Bird, along with Associate Justices Joseph Grodin and Cruz Reynoso, were ultimately removed by California voters in 1986 for ignoring the law, especially the death penalty. Brown’s successors, Republicans George Deukmejian and Pete Wilson, appointed centrists, but the court never fully repaired its reputation. Under the leadership of Chief Justice Malcolm Lucas (1987–1996), the court reversed much—but not all—of the jurisprudential mischief done during the surreal Bird era, particularly in criminal cases. But the pendulum began swinging in a liberal direction again under Chief Justice Ronald George(1996–2011), who showed a lack of principle when it came to enforcing the rights of property owners, employers, and insurance companies. Moreover, the court suffered a major loss when Janice Rogers Brown, an outspoken conservative, left to join the D.C. Circuit Court of Appeals in 2005.
Under Bird, the court invented the common-law claim for “wrongful termination” (despite a legislative presumption that employment may be terminated “at will”); created the tort of “bad faith refusal to settle” insurance claims; and unleashed a torrent of shakedown litigation for “unfair competition.” The court eventually scaled back the first two but has continued to encourage costly unfair-competition lawsuits. It ruled in 2011, for example, that the maker of Kwikset locks could be sued for labeling the locks “Made in U.S.A.” because some products contained screws and pins sourced in Taiwan. The court’s rulings have spawned a cottage industry in California of suing for minor regulatory violations and trivial inaccuracies in packaging, labeling, and advertising. In 2013, a Sacramento man sued Subway in California federal court because a “foot-long” sandwich he bought at one of its franchises was fractionally less than 12 inches long.
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