Justice Mariano-Florentino Cuéllar retires from the Supreme Court in four days to take the helm at the Carnegie Endowment for International Peace. In a column on CalMatters and an interview with law professor Jeannine Bell at Contexts, Justice Cuéllar offers some parting thoughts.
In his column, Cuéllar identifies what “keeps [him] up at night” — the fact that American courts are “vulnerable, fragile and need a renewal.”
Cuéllar writes that “[s]ome courts are fractious and divided along ideological lines,” but, in the interview, he said that California’s Supreme Court is not one of them — “partisan politics simply don’t enter into what my colleagues or I do, and I feel very confident about this conclusion.” He explained that having “to collaborate with people who will sometimes have different views . . . [is] crucial to the work we do.”
Asserting that “[a] court system capable of living up to its promise is foundational to the world’s perception of the legitimacy of the American system,” Cuéllar says in his column:
Debating the merits of our court decisions is as American as chicken-fried steak and jalapeños washed down with boba tea. But when we ignore persistent justice problems, presume that judges are no more than lackeys for the parties of the governors or presidents who nominate them, or — as a former U.S. president once casually asserted — indulge the idea that some of us can’t be trusted to be impartial judges simply because we’re of Mexican origin, we play into the hands of our country’s adversaries and undermine the institutions we hold in trust for our children.
Cuéllar’s column names three priorities to “strengthen our courts with the right mix of innovation and investment” — (1) “increasingly treat remote operations as a major — and in some situations, the primary — channel”; (2) “make further, carefully chosen technology investments,” including assistance for self-represented litigants, “safeguard[ing] evidence in the form of algorithms and datasets,” and protecting “the courts from ransomware and state-sponsored cyberattacks that could paralyze our ability to arraign criminal defendants and conduct civil litigation”; and (3) “take on the ‘justice gap’ that leaves millions of civil litigants without meaningful legal assistance while government agencies and well-funded private sector entities have access to the best legal minds.” Regarding the latter, he mentions the controversial proposal to “certif[y] . . . professionals who lack a traditional law degree but could nonetheless help the public navigate the courts or negotiate settlements” as a “step that could be beneficial.”
Also, during the interview, Cuéllar estimated that “somewhere between 15-30% of our work is death penalty cases.” In the past, Chief Justice Tani Cantil-Sakauye has put the number at 25 percent. (See here and here.)