Recalling the Supreme Court

“We think the discussion of a recall at this point is premature.  But if the court voted to overturn Proposition 8, no one would be able to stop a recall.”  So says Andrew Pugno, attorney for the Proposition 8 campaign.

The California Supreme Court has certainly gotten itself into a fine mess as a result of its May decision to overturn Proposition 22, the statutory initiative outlawing gay marriage, combined with the passage of Proposition 8.  A wiser court would have said, well, the people can pass Proposition 22 and the people can unpass it, as the dissenting justices noted.

Had that been the majority opinion, Proposition 8 might have failed as the voters would have seen no reason to write traditional marriage into the constitution.  Failure of the measure could have encouraged gay marriage proponents to do what they should have done in the first place, convince the voters to repeal Proposition 22.

Now, however, the cultural firestorm unleashed by Proposition 8 places the California court in danger of a recall campaign against it in 2009.

There are two ways for voters to remove Supreme Court justices.  One is through the retention election.  Appellate justices face the voters every 12 years in retention elections where the voters are asked whether to retain the justice in office.  Only three Supreme Court justices have been rejected in modern times, Chief Justice Rose Bird and two of her colleagues in 1986. Generally justices are retained by wide margins.

One reason for this is that the Judicial Performance Commission can and has removed corrupt or incompetent judges.  So it is rare that the voters are asked to pass on a member of the judiciary.

But the voters still retain the right to recall a judge.  Unlike a retention election, a recall once qualified would trigger an immediate election.  The timing would be very much like the 2003 governor’s recall.

As far as I can tell, California has never recalled a judge.  Judicial recall was the most controversial of the Progressive Reforms enacted into law by Gov. Hiram Johnson and the legislature in 1911.  Many of the reformers were strongly opposed to judicial recalls on the grounds it would compromise the impartiality of judges, and at first it looked like judicial recall would not be included in the Progressive Reforms.

But then fate intervened.  Abe Ruef, the notorious political fixer against whom Johnson had campaigned, obtained a four to three ruling from the Supreme Court that would allow him to escape prison.  Johnson was outraged, and forced judicial recall into his reforms.

Johnson saw the recall as a way for voters to take a second bite at the apple if they were disappointed in an election result.  He also saw it as a way to remove officeholders in mid-term who had abused their powers.

Since we do not have judicial elections per se, it seems that proponents of recalling Supreme Court justices would have to show an abuse of power.  Unfortunately for this Supreme Court, there are some serious issues here.     

Proposition 8 proponents have been granted the right to intervene in the cases the court has agreed to hear relating to the constitutionality of the measure.  This is because they do not trust Attorney General Jerry Brown to represent the people’s (voters) interests.   

Brown was an opponent of Proposition 8.  He rewrote the ballot title and summary in a manner that proponents argued was intended to encourage a “no” vote on the measure.  He will be a candidate for governor in two years, and the gay community is a powerful force in Democratic Party politics.  So will Brown provide a sham argument and collude with the other side to get Proposition 8 thrown out?  If that could be alleged, would it not corrupt any decision to overturn Proposition 8?  

The court decided to take the case by a six to one vote.  They asked the parties to address three issues.  The court must decide the status of the 18,000 same sex marriages since their May decision, and asked the parties to address the validity of these marriages.
But they also asked the parties whether Proposition 8 is a revision of the constitution (not allowed) or an amendment (allowed).  Here the court may be setting itself up for a big fall.  Legal precedence says that a constitutional revision is just that, a reworking of the constitution, and the court has only found two revisions posing as amendments in the past sixty years.

But they have held that many very broad measures are legal constitutional amendments.  Proposition 13 totally revised the fiscal policy of California and the relations between the state and local governments.  But the court 30 years ago said that it was not a revision of the constitution but a proper constitutional amendment.  

It would seem hard for this court to find that returning California to traditional marriage is a constitutional revision, but Proposition 13 was not.  For the court to hold this way would require ignoring sixty years of precedent, and the court’s long standing deferral to the will of the voters.

The third question the court asked is whether Proposition 8 violates the separation of powers.  It is a little hard to see what the court is getting at here.  Are they questioning whether the people can reverse a decision of the Supreme Court?  Are they questioning whether the voters can limit the discretion of judges?

But the voters have long done that.  The initiative process is recognized as a legislative process; initiatives make law just like the legislature.  A holding that Proposition 8 is a violation of separation of powers would be saying that judicial power exceeds that of the people acting as legislators.  That’s quite a leap.

This court finds itself right in the middle of a political thicket – the very place courts should not be.  How it handles the issues of constitutional revision and separation of powers may determine the degree to which it can be justifiably said that the Supreme Court has abused its power, and thus has met the standard for the third of our great Progressive Reforms, the recall of public officials.