The California Supreme Court and the Popular Will
37526 chp_19-1 Sheet No. 82 Side A 03/15/2016 15:53:04 Do Not Delete 2/14/2016 10:50 AM The California Supreme Court and the Popular Will Kenneth P. Miller* INTRODUCTION Over the past half century, California has been a battleground for conflicts over the nature, scope, and limits of rights. While Americans have always clashed over rights, the modern rights revolution has expanded the conflict throughout the country, and nowhere more than in California. These struggles have been hard fought, because rights have power. Once an interest is converted into a right, it can trump competing interests that lack the status of right. The ability to recognize, create, or limit rights is consequential, indeed.1 California’s prominence in these conflicts can be traced to several factors. First, the state has deep ideological divides. California is home to progressive social movements that have sought to establish new rights in areas including abortion, capital punishment, criminal procedure, school funding, gay rights, aid-in-dying, and more—and home, as well, to highly motivated conservative groups that have resisted many of these changes. Second, California exists within a federal system that allows states to innovate in the area of rights. State constitutional rights operate semi-independently of the U.S. Constitution—that is, states may define state constitutional 37526 chp_19-1 Sheet No. 82 Side A 03/15/2016 15:53:04 rights more expansively than the Federal Constitution requires. An assertive state supreme court, through state constitutional interpretation, can establish new rights. The California Supreme Court, more than any other state court, has expanded state constitutional rights beyond federal minimums.2 Third, citizens of California have extraordinary power to counter their state supreme court, through state constitutional amendment or * Associate Professor of Government, Claremont McKenna College.
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