A California governor is constitutionally required to get the consent of a majority of the Supreme Court before he or she can pardon or commute the sentence of a twice-convicted felon.  But the court publicly announced earlier this year that it gives deference to the executive branch on those matters, signing off on intended gubernatorial pardons and commutations unless it perceives “an abuse of th[e] [clemency] power.”

Thus, it was a surprise when the court last week rejected two different requests by Governor Jerry Brown for clemency recommendations.  The denials implied an accusation by the court of an abuse of gubernatorial power.

The significance of the rejections is magnified by their rarity.  The court had not previously responded negatively to any Governor Brown clemency recommendation request, so far granting 65 requests during Brown’s second two terms.  In fact, this might be the first time the court has turned down a governor’s request for a clemency recommendation in over 88 years.  The last time apparently was in In re Billings (1930) 210 Cal. 669, an opinion the court effectively overruled when it announced its deferential standard of review this year.

According to Cathal Conneely, Public Information Officer at the Judicial Council, the court still has 29 pending clemency recommendation requests, including three the Governor sent over just last week.  The requests continue to jam the court.  It has only 3 Wednesday conferences left before the end of Brown’s term.