As Jurist Sets Record, He’s Neither Shy Nor Retiring

California Supreme Court Justice Stanley Mosk, who breaks a record today to become the longest-sitting judge on the state high court, says he remains fit at 87 and will serve at least a “couple” of more years.

Mosk, the only Democrat on the Supreme Court, has been an associate justice for more than 35 years. A former California attorney general, Mosk was appointed to the high court by the late Gov. Pat Brown. Six governors have been in office while Mosk has served on the court.

Although his gait has slowed, his breathing is more labored at times and his physique is more frail, Mosk continues to be regarded as a legal giant. He is a prolific producer of rulings by the court, including many of its most important.

“If I find at some point that I am not being productive for the court, I would then consider retiring,” said Mosk, seated behind his desk in his court chambers in the Civic Center complex here. “But thus far, and I don’t say this boastfully, I have been the most productive member of the court every year.”

Some court sources say Mosk has occasional but not significant “lapses.” But “his 90% is more than most people’s 100%,” one such source noted. Others say his age has not affected him at all.

“He has a great institutional memory and insight into the operations of the court,” said Chief Justice Ronald M. George, who many years ago was hired by Mosk as a deputy attorney general. “He is able to recall very specifically things that happened long ago, and why they happened.”

Supreme Court justices are on the ballot every 12 years for reconfirmation. Mosk will be 99 when his current term expires.

“I don’t think I will make that one,” he said with a smile.

There are no term limits or age requirements for judges, and many of the nation’s most famous jurists served into their twilight years.

U.S. Supreme Court Justice Oliver Wendell Holmes Jr. retired shortly before his 91st birthday.

Not Ready to Retire

Mosk breaks the court’s longevity record previously held by Justice John W. Shenk, who served from 1924 until his death in 1959. Shenk, who wrote an opinion opposing interracial marriage, has been called one of the court’s most reactionary justices.

Breaking Shenk’s record has been a goal of Mosk’s for several years. But now that he is on the verge of doing it, he still is in no hurry to retire.

Mosk is a small man with receding white hair and square-shaped glasses. He breathes heavily when he walks, and because of a recent ear infection, he has complained that his own voice sounds unfamiliar to him.

He seems, however, to ignore the limitations of age. When The Times went to the court to take his photograph recently, Mosk gamely stood on one leg on a swivel chair and tried to hoist himself up onto the dais for the picture.

“I sometimes can’t stand at cocktail parties as long as I used to,” Mosk admitted, “and I had to give up tennis, which I enjoyed very much. Other than that, I don’t feel any effects.”

Except for the grief over dying friends, he later added. He explained that he lost three close friends in one month earlier this year.

Mosk worried during the last election that his age would become an issue. It did not, and he was overwhelmingly reconfirmed, in part because of his political shrewdness and court record.

He is a pragmatic liberal who personally opposes the death penalty but votes to uphold death sentences anyway because it is the law. He is more likely than his colleagues to side with plaintiffs such as workers or victims of discrimination, but he has been known to change course if he thinks the public demands it.

“He has been a giant not only for the enormous volume of his opinions over the years but for their frequent quality,” said UC Berkeley law professor Stephen Barnett.

Mosk also “has seen the way the political winds were blowing and adjusted his positions accordingly,” the reason he survived the tumultuous recall of Rose Bird and two other liberal colleagues in the 1980s, Barnett said.

Supreme Court justices depend heavily on their clerks to research and write rulings, and a good staff might be able to sustain a weak judge for years.

But Mosk said his work remains his own, despite what he describes as a superb and loyal staff that has served him for many years.

“I sometimes brutally make revisions,” he said of the drafts of his rulings.

Peter Belton, who has been Mosk’s law clerk for 35 years, said Mosk is more involved in his written rulings than some of the other justices.

“He reads everything that is circulated in the first instance,” Belton said. “He is a voracious reader.”

All the justices have strong staffs, but Mosk is particularly productive because “he puts in long hours and he is a quick study, in the sense 1/8that 3/8 he reads things and understands them very quickly,” Belton said.

When Mosk edits, he usually will “punch up” an opinion by inserting poetic or dramatic language, Belton said. “Many of the famous phrases are directly from his pen, because he has a touch for a dramatic turn of phrase.”

In a 1982 dissent to a court decision that upheld Proposition 8, the Victims’ Bill of Rights, Mosk wrote: “The Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.”

Serving on the court, which he joined in 1964, still excites Mosk. “There’s a certain thrill to make a contribution to the pattern of the law, to interpret past opinions and to find a way to apply them to current circumstances,” he said. “Basically, it is the creativity involved that is most appealing.”

As a jurist, he has been a strong believer in relying on the state Constitution even when there is a conflict with the federal Constitution.

“It’s always been my belief that the federal government sets the floor for individual rights, but the state can grant more individual rights if it sees fit to do so,” he said.

Although he is the most liberal member of the court, his rulings have at times disappointed liberals. Among his most controversial opinions was Bakke vs. Regents of the University of California, the 1976 decision in which a minority admissions program at UC Davis medical school was declared unconstitutional.

His most celebrated rulings include a 1979 opinion that prevented courts from denying a disabled parent custody and a 1982 decision that excluded testimony of witnesses whose memory had been jogged through hypnotism.

Other key rulings extended the restrictions of the California environmental quality act to private developers and stated that keeping people off juries because of their race violated the state constitutional right to trial by a jury representative of the community.

Many judges retire as soon as they can collect their pensions and then go on to private judging, where they can quadruple their salary. Mosk said he has never been interested in the money.

If he ever retires, he said, he would like to write for legal publications and teach. He wrote a book a few years ago about famous days in history, and he is an avid collector of historical documents. He has collected documents signed by every U.S. president, from George Washington to Bill Clinton.

The pictures on Mosk’s office wall attest to his many years of prominence. There are photographs of him with JFK, Harry S. Truman, Adlai Stevenson II, Indira Gandhi and Martin Luther King Jr., who played the piano as a guest at a dinner party Mosk attended in Los Angeles.

Some lawyers who argue regularly before the court said Mosk is less combative in his questioning than in the past, but from time to time challenges them with a litany of legal citations.

“He is still a very clear thinker and writer,” said one lawyer, who nevertheless was dismayed to find him lacking his usual focus at a recent hearing.

“It was the first inkling I had that he is tired out and probably should retire in the not so distant future,” said the lawyer, who asked to remain unidentified.

Chided Wrong Lawyer in Recent Case

During oral arguments in a case a few months ago, Mosk appeared confused while questioning a lawyer. The court was hearing a case in which a prosecutor was trying to force a television station to turn over tape of an interview that had not been broadcast.

Although Mosk later wrote the ruling in favor of the media, he chided the lawyer for the media during the hearing, in an apparent misunderstanding that she represented the government.

Asked about the incident, Mosk said it is difficult to tell sometimes which side lawyers are on because of where they are seated and who has filed the appeal.

Others agree with him and said age was probably not a factor in the confusion. University of Santa Clara law professor Gerald Uelmen said a “very young and vigorous” Court of Appeal justice recently made the same error in a case in which Uelmen was arguing.

While a younger justice who makes a similar mistake may not attract much notice, Mosk’s age invites closer scrutiny. At the same time, fellow justices all express confidence in his continuing capability.

“He is such a gentleman, such a pleasure to work with, even when you are in disagreement,” said Justice Ming W. Chin.

Justice Marvin Baxter, of whom Mosk is particularly fond despite their being on opposite ends of the political spectrum, said Mosk “doesn’t hold back” when expressing his views on cases during the court’s closed weekly conferences.

Because of his seniority, Mosk is entitled to make the first statements about a case during conference. “He is certainly fully prepared,” Baxter said. “He has done his homework.”

Mosk is especially close to his son, Richard, a lawyer in Los Angeles, who says it is the court that sustains Stanley Mosk.

His father has never been particularly health conscious, he said. He never gets on a treadmill or goes to a gym, and he has always eaten what he wanted.

When he tried to lecture his father recently about the value of lifting light weights, the senior Mosk replied: “Listen, I got along without your advice for 87 years. I am not going to start taking it now.”

Justice Mosk said he would hate for his age ever to become an impairment or embarrassment to the court. He commended the late Chief Justice Donald Wright for taking action to remove Justice Marshall McComb from the court in 1977 because of senility.

McComb, who was 82 at the time, died five years after his forced retirement. Mosk recalled that McComb did not know what he was voting on during the court’s private conferences.

How will Mosk know when he is too old to serve?

“I suppose I would be the last one to know when I become senile,” he said with a smile, “but I suppose someone would tell me.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

The Mosk Files

Significant opinions of State Supreme Court Justice Stanley Mosk

1970: Baker v. Regents held unconstitutional an affirmative action program for admission to a public university based on quotes for minority students.

1978: People v. Wheeler prohibited the prosecution removing by peremptory challenges, all the prospective jurors in a criminal trial who are members of one racial or ethnic group.

1979: Marriage of Carney held that handicapped people can not be deprived of the custody of their children on the basis of stereotypes about their fitness as parents.

1997: City of Berkeley v. Supreme Court declared that the state holds title to all tidelands in trust for the people.

1980: Sindell v. Abbott Laboratories held that when a plaintiff is unable to identify the particular manufacturer of the drug that injured him, he may jointly sue all the manufacturers of that drug on a theory of enterprise liability.

1982: People v. Shirley held that police hypnosis of a prospective witness for the purpose of enhancing his memory contaminates the witness and makes his testimony inadmissible.

State Supreme Court Justice Stanley Mosk

Born Sept. 4, 1912

Residence San Francisco

Education Southwestern University, J.D., 1935; University of Chicago, Ph.B, 1933

Career highlights Associate justice, California Supreme Court. Appointed by Gov. Pat Brown on Sept. 1,1964; attorney general of California, 1959-1964; judge, Superior Court, Los Angeles, 1943-1959; legal advisor to the governor of California, 1939-1942

Family Married to Kaygey Kash in 1995, his third marriage. He has one son.