Law Scholar’s View, Cited by Bird Foes, Sees Abuse of Power

Portrayed as right-wing “bully boys” intent on sabotaging the rule of law, opponents of the California Supreme Court on Monday made a bid for intellectual respectability with the release of a scholarly critique of the court by a Berkeley law professor who once worked for the late U.S. Chief Justice Earl Warren.

At a press conference in Los Angeles, Phillip Johnson, a law professor at the University of California, Berkeley, since 1968, offered an overview of his article which makes a case that the state Supreme Court under Chief Justice Rose Elizabeth Bird has abused its power, particularly in its numerous reversals of death penalties and in a 1982 reapportionment decision that let stand a reapportionment plan approved by a Democratic-controlled Legislature but rejected by voters.

Johnson’s article offers court opponents their first academic rejoinder to the endorsement of the court last month by 255 law professors in the state who said that the independence of the judiciary was at stake in the election.

In his article, Johnson wrote that the concern for an independent judiciary, one that will not fall victim to political pressure, must be balanced against a concern for judicial restraint.

“Unless the justices themselves exercise self-restraint, judicial independence can lead to arbitrary, undemocratic government. The basic charge against Chief Justice Bird and her liberal colleagues is that they show no adequate sense of restraint in reading their political views into the statutes and the Constitution.”

The article concludes by saying that “any justice who lacks the understanding of the appropriate limits of judicial power is not responsible and ought to be removed.”

Johnson said he decided to write the article because he was disturbed by what he termed the “the court’s lack of intellectual candor” and “patently dishonest claims” that the justices do only what the law dictates and that personal opinions did not enter into their decisions.

“The court has done what it has done not because it had to do it, but because it wanted to do it,” he said.

Called ‘Headstrong’

Describing the California court as “headstrong and willful,” Johnson said it has been “legislating from the bench and showing a tremendous unwillingness to have its will checked by anyone.”

Johnson said he offered his article as a rejoinder to Bird and to her supporters in the legal community who Johnson said were avoiding serious debate by engaging in “platitudes about the independence of the judiciary and diversionary attacks” on court critics.

His comments were a reference, in part, to Bird’s statements last month that her critics were “bully boys” who had no respect for a judiciary that is independent of political pressure.

The press conference and Johnson’s article were presented as part of “an impartial platform for discussion and expert analysis of the Supreme Court” by a group calling itself the Supreme Court Project, which also said it wants to “provide an alternative to organizations that promote or oppose particular issues or candidates.”

Political Roles Cited

However, the group’s executive director, John Kurzweil, said he is a conservative who has worked for Republican candidates, including President Reagan, and against liberal causes such as a 1983 bill that would have prohibited employers from considering sexual orientation as a factor in hiring, firing or promoting.

Kurzweil also said that all of the directors of the Supreme Court Project were opposed to the reelection of Bird and the other three justices--Stanley Mosk, Joseph Grodin and Cruz Reynoso--who have become known as the court’s liberal majority. The four justices are among six who will be on the ballot in 1986.