Governor Sunshine's Court
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LOS ANGELES & SAN FRANCISCO www.dailyjournal.com MONDAY, DECEMBER 31, 2018 Governor Sunshine’s Court By David A. Carrillo, Stephen M. Duvernay We recognize that relying solely on party desig- and Brandon V. Stracener nation is an imperfect proxy for ideology, and can oshua Groban, Gov. Jerry Brown’s final ap- obscure whether a justice has voted in a “conserva- pointment to the California Supreme Court, tive” or “liberal” direction. The plaintiff/defendant Jwas confirmed by the Commission on Judicial label sometimes tracks traditional liberal/conserva- Appointments on Dec. 21, 2018. We wondered how tive lines, but it does not always necessarily reflect he will fit in with the existing justices. To figure that ideology. Instead, the separate opinions are the best out, we established a baseline for comparison by evidence of a justice’s ideological bent. For exam- analyzing 300 cases decided by the court’s existing ple, Justice Chin has written separately many times members since January 2015. to support a more conservative position (regardless The takeaways are startling. The justices’ ideo- of which party won). Similarly, Justice Liu wrote logical reputations are not the critical factor in their separately on Batson jury-selection issues in a host opinions and votes, and in fact ideological labels of criminal cases to support a traditionally liberal Daily Journal photo Joshua Groban, Gov. Jerry Brown’s final pick to the like liberal or conservative are only weakly appli- view. California Supreme Court, once again establishing a cable to the individual justices. While those are sub- That party designations are somewhat arbitrary, full seven-member court. jective terms, regardless how one reads them they and that justices may concur in a judgment but write neither accurately describe the justices nor predict separately to urge a different result, obscures the their votes. And the justices do not vote in blocs; more subtle truth: It is impossible to use reductive tution predominates over the justice as individual. instead, the court is strongly consensus driven. labels to predict how an individual justice or the *** The justices’ reputations are poor predictors of court as a whole will rule. Even knowing a justice’s The current California Supreme Court lineup their votes. The common assumption is that the ideological leaning is weak evidence of how they achieves high consensus rates, displays shifting vot- Brown appointees (Justices Goodwin Liu, Mari- will vote, because most of the leans are by less than ing blocs, and we learn the justices’ individual views ano-Florentino Cuéllar, and Leondra Kruger) are ten percentage points. This means that most of the only when they choose to write separately. This liberals and the “senior” members (Chief Justice justices are clustered around a midpoint, which court does not have liberal or conservative mem- Tani G. Cantil-Sakauye and Justices Ming Chin helps explain the high justice-to-justice concurrence bers; instead, the six existing justices are indepen- and Carol Corrigan, each appointed by Republican rates, the high number of unanimous decisions, and dent thinkers unsuited to reductive categorization. governors) are conservative. Not so — our research the low number of dissents. The bottom line: on It will take years to divine Justice Groban’s judicial shows that those ideological labels are not good such an apolitical consensus-driven court, the me- philosophy, from attempts like this to read the tea descriptors, and the common assumptions about dian result is strongly favored. leaves of his opinions. But given the lack of align- the justices’ ideological characteristics are mostly We also tested the assumption that senior and ment among the existing wrong. Brown justices align in reliable voting blocs. They justices, it is unlikely that The justices’ votes do not match their reputations. do not: California’s justices almost never divide a four-member majority The Chief Justice is quite conservative in criminal neatly into senior-versus-Brown voting blocs. There will suddenly material- cases but equally as liberal in civil cases. Justice were only twelve 4–3 decisions; in just one the se- ize. This may answer the Corrigan is somewhat conservative in civil cases, nior and Brown justices divided between majority question that shadowed but quite liberal in criminal cases. Justice Liu is re- and dissent. every Jerry Brown ap- liably liberal in civil and non-capital criminal cases, Rather than aligning into distinct blocs based on pointment to this court: but almost evenly balanced in capital cases. Justice reductive ideological labels, these justices are all CARRILLO Whether Governor Moon- Kruger is surprisingly conservative in capital cases, consensus-driven jurists. The most important fac- beam will install another where she overwhelmingly favors the government, tor in any given case is reaching consensus on the Rose Bird court. It’s fair and her civil opinions divide almost evenly. Jus- correct result, not a justice’s politics or an appoint- to say at this point that tice Cuéllar is somewhat liberal in civil cases, but ing governor’s party. The court has high consensus Governor Sunshine has conservative in capital cases. Only Justice Chin’s rates: 79 percent of the cases were unanimous, and gone another direction. results fit common reputational assumptions: he is only 11 percent of opinions had even one dissent. quite conservative in nearly every category. This reduces our ability to draw conclusions from David A. Carrillo is Our data are striking in how they contradict the majority opinions. Because the vast majority of executive director of the justices’ assumed ideological mindsets. Gover- cases are 7–0 or 6–1, a justice’s authorship of a DUVERNAY California Constitution nor Brown appointed a liberal (Liu), a moderate majority opinion does not necessarily reflect their Center, Stephen M. (Cuéllar), and a conservative (Kruger). The Chief personal ideological views; it only proves that a Duvernay and Brandon Justice (assumed conservative) and Justice Cuéllar justice accepted an assignment to write an opinion V. Stracener are senior (assumed liberal) score as almost equally moderate. that reflects the court’s consensus. Those familiar research fellows with the Justice Kruger (assumed liberal) is to the Chief Jus- with the court’s calendar memorandum process California Constitution tice’s right in most categories. And the court has no (an adaptation to the requirement to issue an Center and attorneys in ideological center or swing justice: No justice occu- opinion 90 days after oral argument) will not be private practice. pies the same center spot across all categories in our surprised that this pre-argument collaboration re- left to right rankings. sults in consensus so often. The court as an insti- STRACENER Reprinted with permission from the Daily Journal. ©2018 Daily Journal Corporation. All rights reserved. Reprinted by ReprintPros 949-702-5390..