Nearly two years ago, the Supreme Court issued a nine-page administrative order explaining its constitutionally required oversight role in the clemency process.  (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897).  The order seemed to answer all questions about how the court would handle requests from the governor for pardon and commutation recommendations.

That changed, however, when, along with a number of grants, the court denied 10 separate requests by Governor Jerry Brown at the end of his term and did so without explanation.  The lack of stated reasons left outsiders uncertain about how the court was applying the deferential standard of review spelled out in its earlier order.  Among the perplexed was Brown himself, who said, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.”

Then, when the court approved Governor Gavin Newsom’s first clemency recommendation request, Justice Goodwin Liu issued a separate statement with a list of questions he said “concern[ed] the circumstances in which this court may decline to provide a favorable recommendation on the ground that a pardon or commutation would constitute an abuse of power.” He also suggested that the 10 rejected requests be resubmitted.

Because approving that first request was apparently an easy call, Justice Liu wrote “[w]e have no occasion here to decide” the many questions he posed.  But that occasion for a public answer to those questions may be at hand.

The court has signed off on 12 Newsom requests and rejected none, but one is still undecided — seeking permission to pardon Monsuru Tijani for four different felony convictions over a 13-year period ending in 1999 — and it has been pending for considerably longer than were all the approved requests except for the first one.

At the end of last year, we speculated that the delay on the Tijani request could mean that one or more justices have concerns about a pardon.  That might still be true, but it could also mean that an opinion is in the works — by the court or by an individual justice — to address the so far unanswered questions about how clemency recommendation requests are reviewed.

Related:

Motions fail to pry loose Supreme Court’s clemency denial reasons

LA Times criticizes Supreme Court for not explaining clemency blocks.  Can the court still remedy that?

Did the Supreme Court rebuke the Governor when it blocked clemency?

Why is secrecy the default on gubernatorial clemency recommendation requests?