By MARIA DINZEO
SAN FRANCISCO (CN) – The publication of a weighty chronicle of the history and significance of the California Supreme Court brought the state’s current and former chief justices together for a panel discussion on their hopes for the judicial branch, a reflection on important cases, and what keeps them up at night.
They also paid tribute to the late Chief Justice Malcolm Lucas, who led the court from 1987 to 1996.
Lucas, who died in September of cancer, was set to join Chief Justice Tani Cantil-Sakauye and her predecessor, Chief Justice Ron George, at Tuesday’s unveiling of the California Supreme Court Historical Society’s book, “Constitutional Governance and Judicial Power: The History of the California Supreme Court.”
Cantil-Sakauye said she had spoken to Lucas over the phone about the event, which was held in the Milton Marks Auditorium at the California Supreme Court’s Ronald M. George State Office Complex.
“He was hearty and strong and joking and inquisitive and excited to be here. I looked forward to hearing his recollections as well as Chief George’s, and I’m sorry we’re not able to,” Cantil-Sakauye said. “But I admire the man for his heart and his leadership along with his many skills as a jurist.”
Lucas took over leadership of the state’s high court during a turbulent period, when Justices Rose Bird, Joseph Grodin and Cruz Reynoso were removed by voters in 1986 following a campaign accusing them of being soft on crime.
“My stories of Chief Justice Lucas come from his many admirers in the court, who would tell me stories of what he did and how he did it,” Cantil-Sakauye said. “He walked into a situation that I can only imagine was challenging and hard, and he did it with great poise and grace and thoughtfulness.”
George, who joined the high court in 1996, recalled a Supreme Court case from 1985 involving the city of Azusa’s criminalization of fortune-telling as a famous example Lucas’ humor on the bench.
“When the counsel for the fortune teller was about ready to rest his case, Justice Lucas leaned forward and said, ‘You know there’s one thing that very troubling to me about this case. It’s that one side has a decided advantage over the other,’” George laughed, adding, “When the defense counsel indicated that he was not aware of what that might be, Lucas responded that it was obvious that his client knew the court’s thinking and how the case was going to be decided.”
In keeping with the theme of the evening, panel moderator Dan Grunfeld, a partner at the Los Angeles law firm Morgan Lewis & Bockius, asked the justices what cases they wouldn’t mind erasing from history.
Cantil-Sakauye took hers from the book’s discussion of Ethel MacKenzie, a California suffragist whose American citizenship was revoked when she married a man from Scotland.
“There was a law at the time that said when a woman marries a foreign national, she loses her American citizenship,” she said. “The California Supreme Court upheld the law and it wasn’t until 19 years later that it was overturned.”
She added, “If I had the do-over, with a female majority on the Supreme Court, the do-over might be the meta-issue of women in the 1900s. Not only labor issues exclusion from unions and exclusion from the legislature and the above, but the entire concept of women’s rights.”
George said the court’s most embarrassing decision would be one from 1854 in People v. Hall, a case appealing a murder conviction where the high court ruled that Chinese-Americans and immigrants had no right to testify against citizens.
“The case was objectionable not only as a stark reference to racism, but judicial activism,” George said. “If I had to take one decision of our forerunners out of the books, that would be my first choice.”
Conversely, George pointed to Perez v. Sharp in 1949, the first to invalidate anti-miscegenation statues.
“Much ado has been made of the Loving decision of the United States Supreme Court. But that took place in 1967, coming to the same result 19 years after the California Supreme Court led the way. That to me also illustrates the California Supreme Court being truly a trailblazer in the most important areas,” George said, adding that he relied on that decision in 2008 when he authored a majority opinion legalizing gay marriage in California.
While both justices lauded the California Supreme Court as the second most important in the nation, they said it isn’t immune from what they called a mounting threat to the independence of its jurists, one that extends to courts statewide.
“I think the threat to judicial independence is real and is growing,” Cantil-Sakauye said. “To me, the best approach can be continued education. To speak to groups about the importance of an independent and impartial judiciary. It also means going into the Legislature and having to have that conversation every legislative year. It is a never-ending fight and we continue to have to be vigilant.”
George said he agreed with continuing education.
“There are very serious problems in terms of our citizenry’s understanding of the whole concept of the separation of powers,” he said. “Two of the branches are by necessity political branches, and the judicial branch isn’t supposed to be. And that’s not something at all clearly understood, so we have a real job to make.”
Cantil-Sakauye, who was appointed to succeed George in 2010, said these days she worries about how the courts will keep up with the tides of change in California.
“The judicial branch, we don’t move as quickly to our decisions,” she said. “So what keeps me up is trying to anticipate the change in the administration of justice, because the courts, the filings, the court users, the nature of our court users have all changed. And we are a service to the people. What keeps me up at night generally speaking is ensuring that we are anticipating the change, and that we are able to respond to the change and timely deliver justice.”
She added, “Of course it’s always about funding, but it’s also always about the use of the funding and is it the best use, and it’s always about can we find a more efficient use to balance with due process. And of course, there’s also the oversight and reporting to the Legislature about the change. In many ways, it’s trying to walk a tightrope of providing justice, providing access, and reporting it and doing it on an ever-shrinking budget.”