When the Ninth Circuit asks the Supreme Court to decide a question of California law, it must formally promise to accept the Supreme Court’s decision. Court of Appeal justices who sit on the Supreme Court by assignment are under no similar constraints to be agreeable, as has been demonstrated recently.
Today, the Supreme Court filed three opinions. Two of them were 5-2 decisions and the pro tem justices were dissenters in both. In People v. Capistrano, the court affirmed a death judgment. Justice Liu penned a 30-page dissent, which was joined by Fifth District Court of Appeal Justice Rosendo Peña, Jr. In Gregory v. Cott, an assumption of the risk case, it was the pro tem justice — Justice Laurence Rubin of the Second District, Division Eight — who authored the dissenting opinion; Justice Werdegar signed on.
Less than two weeks ago, in People v. Whitmer, the court decided by a 6-1 vote that a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed according to a single overarching scheme. The lone dissenter there was the pro tem, Sixth District Presiding Justice Conrad Rushing, who wrote a 31-page separate opinion.
Since early May, after Justice Kennard retired and left a still-unfilled vacancy on the court, a different Court of Appeal justice has sat pro tem on 29 cases. Opinions have issued in 17 of those cases. Except for Capistrano, Gregory, and Whitmer, all have been unanimous decisions.
There is no institutional problem when a pro tem justice dissents. What can be damaging is a 4-3 decision with a pro tem in the majority. When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.