October 11, 2010

Projections for the future of the Court: More dissents and more turnover?

In a recent article in the Daily Journal [subscription required], staff writer Laura Ernde documented the remarkable unanimity of the California Supreme Court under outgoing Chief Justice Ronald M. George and asked whether such unanimity will continue under his likely successor, Justice Tani Cantil-Sakauye. According to Santa Clara University law prof Gerald F. Uelman, Ernde wrote, for the year ending last June 30, just 3.8 percent of the justices’ votes could be classified as dissents, up from 3.3 percent the year before but down from 5.5 percent in 2008. Ernde’s article suggests there are various reasons for this unanimity, including the relatively narrow political and ideological range the justices occupy—since the 2005 departure of Justice Janice Rogers Brown, most justices can be considered political moderates of one stripe or another. But another reason is that the current Chief emphasizes consensus and pursues it even after he has the necessary four votes to support a decision. Ernde reports that Uelman is somewhat skeptical that the likely new Chief, Cantil-Sakauye, will have the same ability to persuade the justices that George has had. But, he observed, more dissents might not be a bad thing.

Just as intriguing as whether the rate of dissents will go up under Cantil-Sakauye’s leadership are Professor Uelman’s predictions about possible turnover on the Court. He suggests that many of the associate justices have been on the Court a long time (Justice Joyce Kennard has served for 21 years) and might choose to follow George’s example and step down. Since five of the six associate justices were appointed by Republican governors, the chances of that happening go up substantially if Republican candidate Meg Whitman were to be elected governor in November. So, come next year, we might not only have a new Chief Justice but she may well be at the helm of a Court that looks substantially different from the one we now have. To quote the late Sen. Robert F. Kennedy, “Like it or not, we live in interesting times . . .”

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