Unshackle the High Court

California has not executed anyone since 1967, but capital punishment has claimed one victim nonetheless--the California Supreme Court. Swamped with mandatory appeals in capital cases, the justices of the high court routinely work seven-day weeks, rule on the death penalty at the astonishing rate of once a week and yet have made scarcely a dent in their backlog of capital cases. Under Chief Justice Malcolm Lucas, the court has issued a record 55 death-penalty decisions in little more than a year. But there are about another 180 such cases still pending before the court--just as there were when former Chief Justice Rose Elizabeth Bird was forced from the bench.

For lawyers and judges, what is more worrisome is that the court has so little time for civil cases and non-capital criminal matters. Decisions in key civil cases, including a test of an employer’s right to fire an employee, have been delayed for more than 18 months. Out of necessity, the court also declines to hear important cases it should be deciding and leaves vast areas of the law unsettled. Increasingly, it has resorted to a process called “depublication” or “decertification”; instead of holding full-dress arguments and ruling on the merits, it simply orders that appellate decisions it dislikes be suppressed. That deprives the lower court ruling of any precedential value but obviously leaves the legal community baffled about exactly what the justices found so objectionable. The upshot, as University of Santa Clara law school dean Gerald F. Uelmen recently said, is that the California Supreme Court is “no longer functioning as the architect of California case law.”

The court, as worried about the backlog as its critics, recently announced its own solution: It promised to decide every matter, including capital cases, within 90 days after argument. That move will satisfy a long-ignored constitutional requirement and may have some superficial appeal. But we believe the high court’s solution addresses the wrong problem. No one questions the justices’ efficiency, which the 90-day rule presumably will enhance if they manage to adhere to it. The problem is with the nature of the death penalty and with the volume of capital cases. Because of the finality of the death penalty, such cases require meticulous, time-consuming review. And, under the state Constitution, it is the justices and their clerks who must comb through the trial transcripts looking for errors; every capital case is automatically and directly appealed to the high court, skipping the appeal courts.

It now takes 200 days on the average for the court to decide a case, which makes us wonder just how realistic the 90-day rule is. Can seven justices really work faster than they do now, even if they prepare cases more thoroughly before oral argument? And can they pick up the pace without sacrificing the quality of their work? Already constitutional scholars and other friends of the court are warning that, if the court is to stick to a 90-day timetable, it may be necessary to give short shrift to oral arguments, reduce the time for consultations among the justices and probably forgo some concurring and dissenting opinions. In capital cases, particularly, we wonder whether such haste is well-advised.

The senior justice, Stanley Mosk, believes that the only way out of the court’s dilemma lies in structural reform to increase its capacity. He has proposed increasing the number of justices to 11, dividing the court into two tribunals (one to handle criminal cases, the other civil) and making the chief justice an administrator who could also fill in on either bench. His idea is drawing increasing support from scholars once dubious about it, though milder measures might be taken first.

At the very least, it is time to eliminate direct appeals to the high court and route capital cases through the appeal courts, where issues can be narrowed and sharpened. One objection might be that adding another layer of appeals would prolong the process and put off the condemned man’s day of reckoning. But, as a practical matter, that extra delay would mean little to a process that already lasts eight to 10 years. And the court would be spared some of the busywork that consumes its time and diverts it from what should be its real mission, overseeing the development of state law.