Law Versus Mood: A Case for the Court

Edmund G. Brown Jr., governor of California from 1975 to 1983, is now associated with a Los Angeles law firm.

As we enter the 19th year since the last prisoner was put to death in the California gas chamber, the mood of the people is one of impatience. Two statewide votes in favor of the death penalty, a successful gubernatorial candidate making capital punishment his principle theme and an abundance of horrible murders have combined to increase popular support for the executions to begin. Yet our methodical system of checks and balances does not respond so quickly. The judicial tradition is to scrutinize each case and apply the most exacting standards of due process.

Demagogues have a field day whenever there is a matter that stirs up fear and portends cheap political victories--and all the better if there is an available scapegoat. Today, in California, we witness the spectacle of ambitious politicians virtually salivating at the opportunity to attack the state Supreme Court and associate vulnerable candidates with what is perceived to be its current unpopularity. Judges, the Supreme Court, Chief Justice Rose Elizabeth Bird--all are now invoked as code words for the causes of crime. Getting the judges, these eager politicians imply, is the precondition for getting the criminal. Conveniently neglected is the fact that California is following precisely the national trend: declining crime rates and dramatically rising prison commitments.

H.L. Mencken once defined politics as "the shoosing away of hobgoblins." For those merchants in fear who see the California Supreme Court as just another hook with which to catch votes or campaign contributions, a better hobgoblin would be hard to find--mysterious, easily vilified and defenseless. The current controversy surrounding the courts and the specter of criminals on the loose provides the political entrepreneur with just what he seeks: a splendid opportunity for mining the electorate.

But the issues raised by electoral confirmation or rejection of Supreme Court justices involves more than politics and the fate of a few judges. At stake is a choice about fundamental principles and the kind of government we want. How independent should our judiciary be? And how much should the power of the state be constrained in the pursuit of justice and its corollary, due process?

Empowering judges to make decisions in accordance with their understanding of the law, irrespective of the demands of politicians or the passions of the citizenry, is a novel idea. It arose because the architects of our constitutional framework had few illusions about the perfectibility of man or the unqualified wisdom of the majority. They believed that human nature had inherent weaknesses. That is why they constructed a system of countervailing pressures to ensure that neither the majority nor any minority monopolized power.

In one sense, one might call the Supreme Court the "original sin" branch of government because it functions to curb our excesses--whether by President, prosecutor or ordinary citizen. The court exists by popular consent but with the purpose of independently elaborating the principles of the Constitution and, when necessary, reigning in the passions of the people. Few other nations have adopted this philosophy. Throughout the world, both in the totalitarian left and the authoritarian right, government officials abuse people in the name of the people or in the name of some other ideal. Sadly, most leaders see it as their prerogative to have judges who do their bidding. Such is the greedy ideology of the despot.

But things are different in the United States. Our heritage sees in judicial independence an ingenious method of limiting the natural tendency of governmental power to accumulate, centralize and then tyrannize. Separating the executive authority from the legislative, and both from the judicial, reflects an American distrust of power. More than efficiency or success or even safety, the founders of our republic wanted freedom; and they expected it, not from an all-powerful state that would always carry out the desires of the majority, but from a system of checks and balances or limits. Such limits frustrate, as they do now in California, because by their nature they stop powerful people from doing what they want.

From almost the beginning of our country, there has been a tension between elected officials claiming to carry out the popular will and judges who invoke the right to invalidate actions or laws that they believe contravene the Constitution. For example, our third chief justice, John Marshall, was attacked unmercifully by President Thomas Jefferson and his political allies for interfering with what they considered their electoral mandate. One of them, William Plumer, the governor of New Hampshire, wrote: "The judges of the Supreme Court must fall; they are denounced by the executive, as well as the House, and why should they remain to awe and embarrass the Administration? Men of more flexible nerves can be found to succeed them."

Yet Justice Marshall resisted the political pressure of the President and stood his ground. In the famous case of Marbury vs. Madison, he firmly established the duty of the U.S. Supreme Court to strike down both executive and legislative actions found to be inconsistent with the Constitution. Such judicial supremacy was highly unpopular at the time and in many quarters still is today. Yet it is the only way we know to secure what our Founding Fathers sought most: a constitutional government of "laws and not of men."

When I was governor I had occasion to bring a case before the California Supreme Court. It involved the then-lieutenant governor, a Republican. Each time I left the state, he threatened to assume the powers of governor by making appointments and issuing executive orders. Believing that the state Constitution did not intend such an anomalous situation, I brought suit in the California Supreme Court to make clear that I did not lose the gubernatorial power each time I temporarily crossed the state line.

In most places in the world such a case would be decided quickly in the chief executive's favor. But even though I had appointed the majority of justices, I had no private contact with any of them and had to wait my turn on the court calendar with the other litigants. When the decision finally came, it was in favor of the lieutenant governor and against my position.

When Ronald Reagan was governor, he frequently praised the death penalty but succeeded in only presiding over one execution in eight years. In 1972, the man whom he had appointed as chief justice wrote an opinion that invalidated capital punishment on the ground that "it degrades and dehumanizes all who participate in its processes." At the time of this decision a majority of Californians strongly supported the death penalty.

Under the constraint of constitutional precedent and the inherent flaws of the 1978 initiative that established the present capital-punishment law, the California Supreme Court has been carefully refining the standards that must guide imposition of the death penalty. Not widely understood in all this is the principle the U.S. Supreme Court articulated in 1980, in Godfrey vs. Georgia. The court said in that case: "A capital sentencing scheme must . . . provide a 'meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not.' " For even the wisest judge, this presents a profoundly difficult task.

Contrary to public expectation, the death penalty is now constitutionally permissible in only a small fraction of murder cases. Since 1967, there have been 50 executions in the entire United States. In eight of the cases, the defendants gave up their rights to appeal and asked for the death penalty. All the 42 involuntary executions took place in nine Southern states; 34 of them in only four states. In other words, the California Supreme Court's scrupulous approach to the death penalty is not only consistent with the rulings of the U.S. Supreme Court but reflects the actual practice in the vast majority of states.

As one who finds deliberate killing by state officials repugnant, I find such caution welcome. When government- sponsored killings are so indiscriminate in the rest of the world, I am glad that the executioners in California are restrained by our system of law.

When I made appointments to the Supreme Court, I did not look for individuals who would take the path of least resistance. I wanted those who were strong and independent, who knew the law and who were willing to apply it with compassion. I did not want justices who followed public-opinion polls.

Of all the justices, it is Chief Justice Bird who is singled out for political attack. Her decisions are not significantly different from those of her predecessors or many of her colleagues, but this has not seemed to matter. One can offer a variety of explanations, but I believe they all boil down to the simple fact that she stands apart. She has not embraced the powerful forces of the day or the biases of the moment, but has insisted on the underlying logic of the laws she interprets. She takes the longer view of society and her role in it at the very time when immediate gratification and near-instant response express the ethos of the age. Perhaps many of us expect the judges to jump on some kind of a bandwagon. But she and the other members of the court have not done so and I doubt that they will.

If it is possible to be objective about the court and the path it has taken, I would simply say that it has sought to preserve an ideal as old as America itself: justice for all under a system of law.

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