Lawmaking Fouls Up Justices, Puts Legislators on Easy Street

For years legal scholars have been arguing about the intrinsic differences between courts and legislatures in the making of law. Almost everyone agrees that in some cases judges must and do make law, but most also argue that the freedom of the courts in this regard should be considerably less than the power of legislators to draft laws.

It is difficult to draw a precise line between proper and improper judicial lawmaking, and in many situations the difference has boiled down as much to one of mood as to anything else. In the background, of course, has hung the argument that the more judges behaved like legislators, the more they should be treated like legislators at the polls.

Certainly the California Supreme Court, though by no means only recently, has in many areas acted very much like a legislature. A good example of this, but by no means the only one, exists in its treatment of the Unruh Civil Rights Act. That statute provides that “all persons . . . no matter what their sex, race, color, religion, ancestry or national origin are entitled to . . . equal . . . privileges . . . in all business establishments,” but it makes it clear that it does not invalidate criteria that are “applicable alike to persons of every sex, color, race, religion, ancestry or national origin.”

Nonetheless, the court, in keeping with a line of cases that goes back almost 30 years, recently prevented the Boy Scouts (hardly what one would consider a “business establishment”) from discriminating on the ground of sexual preference (not one of the enumerated categories in the act). However wise and good legislative policy the court’s decision was (and as a legislator I would agree with it fully), it seems hard to dispute that the court was simply asking what the Legislature should have done rather than what it did do.

Nor is this the only example of stretching the act. The courts have over the years applied it to prevent discrimination against the young, the aged, “families with children,” “persons with a reputation of immoral character” or any other “arbitrarily chosen” category of citizens.

Again and again court decisions establishing new rights have been justified by defenders of the court on the ground that the correct answer was clear but that the Legislature was not taking action.

One dissent even wished to hold unconstitutional the Legislature’s detailed effort to cope with the malpractice crisis. It took only the slightest bow to judicial restraint by acknowledging that “only when the political process malfunctions should the judicial branch intervene,” but wished to hold the law unconstitutional because prospective malpractice plaintiffs, not knowing who they would be, had no real representation in the Legislature, and “had no incentive to engage in coalition building or lobbying.”

Entirely apart from the existence of the enormously powerful California Trial Lawyer’s Assn., which represents, for a considerable percentage of the recovery, those who in the future do become plaintiffs, the idea that the Legislature’s unresponsiveness requires the courts to intervene makes the judge, in essence, a kind of superlegislator.

Indeed, the remarkable thing about the recent court election in which the justices finally were treated like legislators is the fact that the legislators were not. The California legislator today has, in effect, life tenure. Not one incumbent legislator in either the Assembly or the state Senate lost his or her seat. By diligent gerrymandering, districts have been drawn so that with the minimal advantage of incumbency they are virtually all completely safe for their occupants.

In other words, California has done it again. The same political system that has taken what amounted to life tenure away from the justices who legislate has given it to the legislators who do nothing else. There is something basically unfair in this. If the justices had been able to run from districts that they themselves had drawn, perhaps they could have all been reelected, too.