Lesson for Deukmejian: Court Must Be Separate

Democracy is a fragile thing. If we look at other countries, too often we will find much less freedom than we enjoy. In many of those countries the courts are not independent. The judges are dominated by a powerful president and are not free to exercise independent judgment.

U.S. Sen. Sam J. Ervin Jr., the country lawyer with the Harvard law degree who guided the Senate through the Watergate crisis, thought that an independent judiciary is perhaps the most essential characteristic of a free society. That opinion was shaped in part by the fact that a U.S. Supreme Court ordered President Richard M. Nixon to turn over tapes to the Senate. What an extraordinary thing: an independent Supreme Court free to make a crucial judgment based on the law and the Constitution, not on politics or judicial self-survival.

An independent judiciary is a difficult concept to explain to foreigners. And, judging from recent developments, it is a difficult concept to explain to Gov. George Deukmejian. But the important question is: Can we explain it to ourselves in time for it to do some good before California’s election in November?

Deukmejian has attacked three sitting judges of the California Supreme Court because he wants them out so that he can appoint three judges of his own. The defeat of Chief Justice Rose Elizabeth Bird and Justices Joseph R. Grodin and Cruz Reynoso would allow Deukmejian to dominate a separate and independent branch of government. Such things are done in Uganda but have never been done before in California. Deukmejian has not read his history. If he had, he might be less willing to cash in the judicial independence that has saved this country and this state many times for his politics of the moment--the ultimate quick fix.

Deukmejian’s attack on the justices is dangerously wrong for three reasons: It undermines the independence of the judiciary; it ignores the courts’ sworn duty to strike down unconstitutional statutes under Marbury vs. Madison, and, as a lawyer and an officer of the court, Deukmejian knowingly attacked justices who are obligated by the Code of Judicial Conduct not to give answers about specific cases.

Judicial independence is the collective accumulated strength of judges that allows them to strike down unconstitutional statutes or reverse cases that were unfairly tried, even if a governor or President thinks otherwise. Alexander Hamilton wrote in the Federalist Papers that if it is incompatible with the Constitution, courts must strike down a “momentary inclination (that) happens to lay hold of a majority of our constituents.”

Franklin D. Roosevelt suffered a major political setback in 1937 when his court-packing plan was rejected. The President told the country that the U.S. Supreme Court should be restructured. The court had struck down as unconstitutional portions of Roosevelt’s New Deal. The country told the President, “No!” The dean of the University of Michigan Law School, Henry Bates, testified at the time: “Granted, for the sake of argument, that some of its decisions were wrong and that the court may not quickly respond to changes; still it is far better to await the orderly process of judicial action and not to secure decisions satisfactory to the President by adding to the court enough men to carry out his policies, however desirable those policies may be.”

California’s own populist U.S. Sen. Hiram W. Johnson said, “The issue seems plain: Shall the Congress make the Supreme Court subservient to the presidency? The implications of this are so grave and far reaching I can do but one thing, and that is to the limit of my capacity oppose this extraordinary legislation.”

The second reason Deukmejian is wrong has to do with the court’s historic sworn and important role in striking down unconstitutional legislation. All such legislation by definition enjoys some popular support at the moment it is passed. A Supreme Court’s function requires that it be strong enough to withstand popular demands of the moment and preserve constitutional values.

This important principle is accepted by judges of all political philosophies. In 1976, for example, the California Supreme Court unanimously struck down the 1973 death-penalty statute that Deukmejian had carried as a senator in the case of Rockwell vs. Supreme Court. Three of the justices had been appointed by then-governor Ronald Reagan. Justice William P. Clark Jr. concurred in the opinion, saying : “This court has no choice but to invalidate the California law.” Since the time of Chief Justice John Marshall and the case of Marbury vs. Madison, decided in 1803, it has been clear that judges have a fundamentally different set of obligations from those of a President or a governor. All judges have a sworn duty to strike down an unconstitutional statute or reverse an unfair case, no matter what their own personal preferences might be. Deukmejian’s attack on the court cuts deeply into the valuable and historic system of checks and balances. The politicians should be told to keep their hands off.

Finally, Deukmejian’s attack is unfair because the justices cannot answer. They are forbidden by the Code of Judicial Conduct from expressing personal views concerning important public issues, promising to vote a particular philosophy in future cases, discussing pending cases or responding to media criticism by explaining past cases.

For example, the governor attacked the Supreme Court’s opinions as bad for California business. He then had to admit that he based his analysis on the results of some decisions without regard to whether they were legally correct. The great heat generated by the ferocious political attacks on the court obscures the truly significant things that usually enhance a judge’s reputation.

When Bird served as the secretary of California’s Department of Agriculture and Services she banned the use of the short-handled hoe that forced field hands to spend hours at a time in an uncomfortable stooped position. Grodin was an honor student at Yale Law School and a Fulbright scholar. Reynoso received a Ford Foundation fellowship that allowed him to study constitutional law at the National University of Mexico in Mexico City. Such cloistered members of a court are in no position to combat an aggressively political governor, but always in the past the public has done it for them.

Those who are old enough can remember the annual duck-hunting trip taken by Earl Warren, chief justice of the United States, and Edmund G. (Pat) Brown, governor of California. Both men, although of different political parties, had a sense of balance and a sense of history that are sadly missing in Deukmejian’s view of the California Supreme Court’s role.