There are three high-profile cases pending before the Supreme Court concerning California’s cash bail system. (In re Humphrey (see here), In re White (see here), and In re Webb (see here).) In each, the court has ordered briefing about the “effect, if any,” on the cases of new pretrial detention legislation that Governor Jerry Brown signed last summer.

Chief Justice Tani Cantil-Sakauye praised the bill (which has since been put on hold by the qualification of a referendum to repeal it), had earlier championed the issue of pretrial detention reform, and has since said that the reform will continue with or without the new law (see also here). Some have raised the question whether these prominent public positions should preclude the Chief Justice’s participation in the three bail cases where interpretation, or even the constitutionality, of the new legislation could be in issue.

Recusal might be the wrong choice for her even if it would be advisable for any other judge.

Under the state Constitution, the Chief Justice occupies a unique, dual role. She is the Chief Justice of California, meaning that she not only is a member of the Supreme Court, but also, as chair of the Judicial Council, heads the State’s judiciary. The Constitution requires the council to take certain actions “[t]o improve the administration of justice,” including “mak[ing] recommendations annually to the Governor and Legislature.”

Judges in general are allowed to draft legislation and testify before legislative bodies to benefit the law or the judicial system, but might well be constrained from ruling on cases in which their impartiality could be seen as compromised by their legislative activities. (See here and here.) For the Chief Justice, however, the state Constitution might override the constraint faced by other judges. It seems plausible that the Chief Justice’s actions while fulfilling her constitutionally assigned role as head of California’s judiciary should not impede the performance of her other constitutional role as a Supreme Court justice.

The Chief Justice has hinted at the distinction. Commenting on the new pretrial detention bill, she said, “We as a branch supported [Senate Bill] 10 because we believed it was a fairer way to assess a person charged with a crime.” (Emphasis added.) This suggests she’d be comfortable ruling on the three bail cases as a justice of the Supreme Court after having been involved — as leader of the judicial branch — in legislation directly relevant to the cases.

That sounds reasonable. Of course, that principle did not stop the Chief Justice from recusing herself when a writ petition named the Judicial Council itself as a party to the proceeding. Maybe things will be different if the council is not a Supreme Court litigant.