Not long after California voters ousted Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso from the state Supreme Court, new Chief Justice Malcolm Lucas assured that the election “was analogous to a 100-year flood — a very unusual circumstance, which I do not anticipate happening again.” That was 28 years ago. So far, so good. But, as climate change science has taught us since then, “100-year floods” are now more frequent than every 100 years.
Around the country, judicial elections have become increasingly expensive and politicized, even retention elections like California’s where appellate justices do not face opponents on the ballot but are subject to simply a yes-or-no vote. Four years ago, Iowa voters removed three justices from their Supreme Court because of the justices’ votes in a unanimous opinion overturning a same-sex marriage ban. Earlier this month, three Tennessee Supreme Court justices prevailed in their retention elections, but only after a well-funded campaign against them, including television commercials calling the court “the most liberal place in Tennessee.”
California’s Supreme Court has not been subject to such big money campaigns since the 1986 Rose Bird election, but one-issue opposition groups have made their appearances here. Former Chief Justice Ronald George and Justice Ming Chin were targets of anti-abortion forces in 1998 because they had voted in a case to strike down a parental consent law. (George has spoken in favor of getting rid of retention elections and Chin has said he’s “getting closer” to that position.)
But attacks don’t come only from the right. I received an email from a group upset about the Supreme Court’s recent decision to strike from this November’s ballot a proposition asking the voters to give their advisory opinion whether the U.S. Constitution should be amended to overturn the U.S. Supreme Court’s Citizens United opinion. According to the email, the state Supreme Court’s action “proves we now have a problem with right wing agenda driven judges throughout our court system.” The email identified Justices Liu, Baxter, and Werdegar as three of the five “responsible” judges who are subject to a retention election this November and said, “if [the justices] think they can act unilaterally to deny the People a chance to speak out in opposition to Citizens United, maybe we’ll all come out and vote anyway, AGAINST them.”
These attacks are profoundly ignorant, and not just because the author of the email didn’t know that Justice Baxter is not on the ballot but is retiring, or because it would be news to the Republican Senators who blocked Justice Liu’s appointment to the Ninth Circuit that Liu is a “right wing agenda driven judge.” Rather, they betray a fundamental misunderstanding of the role of the judiciary. The California Supreme Court’s action on the ballot measure had nothing to do with the justices’ views on the propriety of Citizens United and everything to do with the more mundane issue of the California Legislature’s powers under the state constitution.
But that kind of ignorance plus a lot of money — from the right or the left — can increase the frequency of “100-year floods.”
The lawsuit over Prop 49 has as much to do with the judiciary’s power to remove ballot measures as it does with the Legislature’s power to place them there. That may seem mundane to some, but there is a core sovereignty issue at stake.
Wouldn’t you agree that if the Legislature has no power to put an advisory measure like Prop. 49 on the ballot, then the judiciary has the power to remove it? So, isn’t the case indeed about the scope of the Legislature’s powers? The main point of the blog post, however, is that the case is NOT about whether Citizens United was correctly decided.