Since Justice Kathryn Werdegar announced her retirement, some commentators have been predicting a shift at the Supreme Court once Governor Jerry Brown names her replacement, who will be the governor’s fourth pick on the current court. For the first time in decades, the court will have a majority of justices appointed by a Democratic governor. One article asked, “Will Jerry Brown Tilt California Supreme Court Against Business?”
However, an examination of recent decisions indicates that the new justice is not likely to have a big impact on the outcome of Supreme Court cases. To begin with, most court opinions are unanimous. But even split decisions rarely have had the three Governor Brown appointees — Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger — voting together in dissent with Justice Werdegar on the other side.
In fact, looking back at the 160 opinions issued in cases argued on or after the September 2015 calendar, there appears to be only one in which the outcome would have been different had Justice Werdegar changed her vote to side with the three Brown appointees. In that case — Department of Finance v. Commission on State Mandates — Justice Werdegar joined a 4-3 majority holding conditions imposed by the state on local agencies that operate storm drain systems are state mandates for which the state must reimburse the agencies. Justice Werdegar could also have made a difference when the three Brown appointees recorded votes dissenting from the denial of review in a three-strikes resentencing case.
There have been a handful of other 4-3 decisions in which Justice Werdegar was in the majority, but she was joined by at least one Brown appointee in each. (See here, here, here, and here.) Similarly, in two high-profile education cases, Justice Werdegar could have been the fourth vote to grant review, but, again, one Brown appointee (Justice Kruger) also voted against hearing the cases.
There was also one death penalty opinion in which only the three Brown appointees felt there was error in the admission of evidence, but they still concurred in affirming the judgment because they found the error to be harmless. And in another case, the three signed the court’s unanimous opinion upholding the dismissal of a student’s personal injury lawsuit, but were alone in a separate concurring opinion suggesting legislative action.
Of course, any change in the court’s composition can alter the dynamics of the justices’ deliberations, which in turn can determine how a case or petition for review is decided. But the new justice — whenever he or she is appointed — will probably not cause any dramatic changes.