In 1948 Sylvester Davis and Andrea Perez, both in their late twenties, drove to the County Administration Building in downtown Los Angeles to take out a marriage license. The clerk asked the couple to wait while he talked to his supervisor. A few minutes later, he returned and informed them that, regretfully, he could not issue the license, since Davis was African American and Perez was Caucasian. California laws, like those in other states at the time, explicitly forbade “marriages of white persons with Negroes, Mongolians, members of the Malay race, or mulattoes.”1
Davis and Perez filed suit, arguing that the Catholic Church, of which both partners were members, had no objection to the marriage, so why should the state stand in the way? In October 1948 the California Supreme Court agreed. Writing for the majority in the case called Perez v. Sharp, Associate Justice Roger Traynor declared: “Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice.” Constitutional guarantees of equal protection mandated that laws could not be based on “arbitrary classifications of groups or races,” Traynor added.
Associate Justice Jesse Carter went even further, declaring it his “considered opinion that the statutes here involved are the product of ignorance, prejudice and intolerance.” Two months later Davis and Perez exchanged vows. It took nearly two more decades before the U.S. Supreme Court, in the case Loving v. Virginia, eliminated the ban on interracial marriages nationally.2
The court that Rose Bird hoped to join had long been widely recognized as the nation’s most pioneering and prestigious state judicial institution, a reputation built over a thirty-year period. Beginning in the 1940s, the seven-member court broke new ground in a variety of areas, including admissibility of evidence, strict liability, abortion, and the death penalty. Its justices enjoyed international reputations. Chief among them was Traynor, whom the New York Times once dubbed “one of the greatest judicial talents never to have sat on the United States Supreme Court.” In fact, Traynor’s arrival on the court in 1940 heralded the court’s rise to national prominence, a situation that might seem somewhat ironic, given the circumstances of his appointment.3
Democratic governor Culbert Olson had originally nominated University of California, Berkeley law professor Max Radin to the court, but Radin failed to win confirmation because of what critics deemed his “extreme leftist” views.4 Traynor, also a professor at Berkeley, specializing in tax law, was Olson’s second choice. He easily won confirmation, despite the fact that he had never been a judge. It is hard to imagine Radin as more liberal than Traynor, who within a decade of his arrival had penned several monumentally significant and progressive decisions in civil rights cases.5
Traynor was a product of New Deal jurisprudence, which, as one scholar noted, “allowed the expansion of government regulatory powers over the economy while creating a new civil liberties jurisprudence.” Traynor himself once explained his judicial philosophy as one in which judges should “descend to the everyday business of life to make . . . decisions.” Seven years after Perez v. Sharp, for example, Traynor wrote a majority opinion that limited the tactics police could use to collect evidence in criminal cases.6
Charles H. Cahan was a high-rolling Los Angeles bookmaker. Los Angeles police chief William Parker had declared that he wanted “this son of a bitch in jail” and instructed his officers to use every means necessary to ensure Cahan’s arrest and conviction. They happily obliged, breaking into two houses and installing wiretapping machinery. For more than a month, they secretly recorded conversations from listening posts set up in neighborhood garages. At Cahan’s trial, officers proudly testified about their actions. Prosecutors won a conviction, but Cahan’s lawyers appealed, citing the U.S. Constitution’s guarantee of protection against unreasonable searches and seizures.7
In April 1955 the state supreme court overturned Cahan’s conviction. Traynor’s blistering opinion excoriated police tactics. “That officers of the law would break into and enter a home, secrete such a device . . . and listen to the conversations of the occupants for more than a month would be almost incredible if not admitted,” he wrote. Such actions represented “flagrant, deliberate and persistent violations of the Fourth Amendment’s fundamental right to privacy.” It would be another six years before the U.S. Supreme Court reached the same conclusion in the case Mapp v. Ohio.8
Between 1944 and 1962, the court “sparked a nationwide revolution in product liability law.” One case involved a customer injured by a power lathe. Not content to simply rule for the plaintiff, Associate Justice Mathew Tobriner went further, attributing “the consumer’s powerlessness” to “a larger ‘economic imbalance’ that gave big business an unprecedented control over people’s lives.”9
In 1964 Governor Pat Brown elevated Traynor from associate to chief justice and named California attorney general Stanley Mosk to replace Traynor. The court continued on its precedent-setting path. In 1965 it decreed in Dorado v. California that defendants had to be advised of their right to counsel at the time of arrest. The case involved Robert Dorado, a prisoner condemned to death for murdering a fellow inmate. At trial he claimed that police coerced him to confess and that he had not been notified of his right to an attorney. The U.S. Supreme Court expanded this doctrine nationally the following year in the case Miranda v. Arizona.10
In 1969 the California court waded into the murky and turbulent waters of abortion politics with People v. Belous, when it overturned the conviction of a doctor who had referred a patient for an abortion in defiance of state law. The decision, written by Associate Justice Raymond Peters, declared that women had a “fundamental right . . . to choose” whether to bear children. The state could regulate the procedure only when it had a “compelling interest” in doing so, he added.11 The ruling pertained to a single individual, but the Washington University Law Review predicted it would have far-reaching consequences, since it “strongly implie[d] that prohibitive abortion laws are per se an impermissible exercise of the state’s police powers.” Four years later, the U.S. Supreme Court demonstrated the accuracy of that prediction with Roe v. Wade, which made abortion legal nationally.12
Traynor left the court in 1970. Republican governor Ronald Reagan named Donald Wright, a superior court judge, to replace Traynor as chief justice. If Reagan thought Wright would move the court in a different direction, he was soon sorely disappointed. In February 1972, in the case People v. Anderson, Wright wrote the decision eliminating capital punishment in California for a lopsided six-to-one majority. He cited the U.S. Constitution’s Eighth Amendment proscription against cruel and unusual punishment, and the California Constitution’s ban on cruel or unusual punishment.
Wright declared that capital punishment “degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.” He insisted the ruling was not “grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members.” Four months later the U.S. Supreme Court eliminated the death penalty nationally.13
Finally, in 1976, the year before Rose Bird’s appointment, California justices ruled that partners who lived together without marrying and then went their separate ways had the same rights to financial remuneration as married couples. The case involved actor Lee Marvin and his former lover Michelle Triola and added a new word to the lexicon: “palimony.”14
Thus, when Rose Bird peered into the future and pondered what her tenure atop the court might look like, she had a thirty-year record of precedent-setting decisions in her sights, as well as recognition of the court’s national reputation. The Wall Street Journal, for example, had called California’s highest tribunal “perhaps the most innovative of the state judiciaries, setting precedents in areas of criminal justice, civil liberties, racial integration and civil procedure that heavily influence other states and the federal bench.”15And it sometimes chose “to extend the constitutional protections beyond those required by the federal court,” something for which Bird herself had argued as a deputy public defender in Santa Clara County.
Legal scholars were particularly enamored of the court. University of Chicago law professor Harry Kalven singled out Roger Traynor for special praise, calling him “a law professor’s judge. His opinions are concise; he raises all the issues; his writing is lucid and to the point. His citations are knowledgeable, economical and literate.”16
Bird undoubtedly knew that the court also had its critics, most of whom were not members of the media elite, law professors, or legal scholars but were conservative politicians and ordinary people critical of what they viewed as judicial “overreach” and excessive activism. These critics complained about many of the majority’s rulings, claiming that justices “coddled” criminals and ignored citizen concerns about crime, social instability, and “immoral” behavior. In fact, justices kept desk drawers full of letters from people who wrote missives such as this one: “You are a bunch of stupid idiots.” At various points, critics angrily challenged individual justices.17
One conservative grassroots group, the California Republican Assembly, called for Traynor’s ouster, claiming that he and his fellow justices had “illegally usurped the powers of the Legislature.” And critics accused Associate Justice Tobriner, a labor lawyer before his 1962 judicial appointment, of being a naïf and dupe of leftists, even communists. After the Cahan decision in 1955, Los Angeles police chief William Parker condemned the entire court, charging that justices aimed to hamstring police while encouraging the illicit actions of hardened criminals.18
In 1965, shortly after the Dorado decision, former Republican governor Goodwin Knight publicly branded the court’s liberal majority elitist, declaring them to be “men whose records prove they have had so little actual experience in the practical side of our law enforcement that they are truly living in ivory towers of hair-splitting legal gymnastics.” Knight singled out justices by name. Traynor was a man with “no record of ever having practiced private law. . . . From college he went to the classroom as a professor and stayed until he was appointed to the Supreme Court.”
Knight criticized Associate Justice Paul Peek for having only four years of courtroom experience before joining the court, while Raymond Peters had “only practiced law for three years.” Knight had to admit that Tobriner had had “some experience in private practice of law”—nearly three decades’ worth—but Tobriner also had a “very liberal political record.” Justices in general “should remember they are officers of the court, not sociologists or probation officers,” Knight added.19
But overall, few ordinary citizens paid attention to what seemed to be minor political disagreements or to the court in general at this point. In fact, if put on the spot most people would be hard-pressed to summon the name of even a single state high court justice. Most members of the public had little idea of how the court operated or how it might differ from the U.S. Supreme Court, whose rulings throughout the 1950s and 1960s had drawn far more debate and controversy.20
This lack of attention meant that California Supreme Court justices could go about their work largely free of concern about political consequences, even though consequences were possible. State high court justices, unlike their federal counterparts—all men at this point on both courts—did not have lifetime appointments. Following nomination by the governor, they had to be confirmed by the three-person Commission on Judicial Appointments. They appeared on statewide ballots the first general election following their confirmations, again the year that their predecessors’ terms would have ended had they remained on the court, and thereafter at twelve-year intervals.
No one had ever been removed from office, though special interest groups occasionally tried to facilitate such campaigns. Agriculture interests, for example, briefly targeted Justice Phil Gibson in 1940. Opponents cited his youth, his inexperience, and the possibility that an individual so biased in favor of workers might remain on the court for decades. Gibson paid little attention to the criticism and stayed for a quarter century, ending his career as chief justice in 1964.21
The court had faced intense opposition after a 1966 decision nullifying Proposition 14, a ballot initiative designed to allow landlords and home owners to discriminate on the basis of race when they rented or sold homes. The ballot measure had overturned the Rumford Fair Housing Act, enacted by the legislature in 1963, which had deemed such discrimination illegal. “In conservatives’ eyes,” wrote Lisa McGirr, “open housing laws compromised absolute property rights in favor of civil rights and social justice, a compromise they were not willing to make.”22
After the court, in a five-to-two decision, declared Proposition 14 unconstitutional, opponents erected billboards along Southern California highways calling for the ouster of four justices seeking confirmation on the November ballot. But they raised virtually no money, and all four justices won voter confirmation, though by slightly lower margins than usual. The campaign exhausted Paul Peek, however, and he left the court the following year.23
A 1971 ruling that suggested California’s method of financing K–12 education was unconstitutional also garnered strong criticism in some quarters. The state had long used property taxes as the primary funding source for schools, but a lawsuit filed in 1968 argued that this approach privileged students in wealthier districts over the less affluent. A trial court judge in Los Angeles initially dismissed the case, but the state supreme court overruled him and ordered the case to trial. If the facts alleged were true, justices said, they amounted to a violation of the Fourteenth Amendment’s equal protection guarantee. This ruling set off a lengthy set of judicial decisions that ultimately led California to adopt statewide funding for schools.24
Given the number and variety of cases that angered special interest groups, what accounted for the inability of critics to gain traction against justices, even when their decisions seemed to go against public sentiment? Part of the explanation hinges on longstanding deference toward the judiciary as an institution. To most members of the public, the court seemed mysterious and unreachable; justices were seen as sitting on an exalted perch, high above mere mortals. Such men held impressive credentials and were extremely learned and accomplished.
In his critique of the court, Knight had reinforced this elite status even as he mischaracterized the legal backgrounds of three justices. It was true that Roger Traynor had not been a judge before Culbert Olson appointed him to the court in 1940, and that he had spent his career as a law professor at UC Berkeley’s Boalt Hall, teaching classes on taxation. But judicial experience was not a prerequisite for appointment to the high court. One only had to have passed the state bar and have ten years of professional experience in the field of law.
Traynor’s work as a professor definitely qualified on that score, as did his work in government. As a consultant for the state Board of Equalization in the 1930s, he created much of California’s modern tax system. And during that same period he worked with the U.S. Treasury Department to draft the Revenue Act of 1938. He also served as deputy attorney general under Republican attorney general—later governor—Earl Warren in the late 1930s.25
Paul Peek had only practiced law for six years before Pat Brown appointed him in 1962. But he had worked in all three branches of state government—in fact he remains the only justice to have done so. Peek had been a state assembly member and served briefly as assembly speaker. He had also worked in the executive branch, as secretary of state. Raymond Peters had been presiding judge of the court of appeals in San Francisco before arriving at the court in 1940. He also had created and directed a number of community law programs in and around San Francisco.
Knight did not mischaracterize Mathew Tobriner’s professional history. In fact, Tobriner had spent thirty years representing workers and unions before Pat Brown—one of Tobriner’s oldest and closest friends—appointed him to the court in 1962. And Tobriner was proudly and unabashedly liberal. He “forcefully advocated” the position that “the court should be an instrument of social change.”26 In 1963 he authored a decision overturning an earlier ruling that had deemed Henry Miller’s novel Tropic of Cancer to be obscene. Set in bohemian Paris in the 1920s and 1930s, it offered explicit depictions of sexual encounters. “The creations which yesterday were the detested and obscene become the classics of today,” Tobriner wrote.27
Tobriner also was an extremely affable man who apparently never met a person he disliked, “believed deeply in the inherent goodness in everyone,” and preferred to be called “Matt” rather than “Justice Tobriner.” He was also self-effacing to a fault. Once when a young lawyer asked Tobriner’s advice on the best route to a seat on the state supreme court, Tobriner responded: “Go to high school with someone who plans to become governor.” His personality, therefore, made him a difficult target even for those who disagreed with his political views and judicial rulings.28
Despite occasional grumbling, politicians in general backed away from direct confrontations over judicial decisions and challenges to judges themselves. One reason: California politics during the first two-thirds of the twentieth century was much less partisan than it later became. Legislators from both parties frequently crossed the aisle to socialize with each other. Additionally, parties themselves tended to be relatively weak, due in part to practices such as cross-filing.29
Cross-filing allowed candidates to run in primary elections for both parties, without listing their own party registrations. If they won both primaries—as both Earl Warren and Pat Brown did—they did not have to run in subsequent general elections. The practice tended to sideline candidates for statewide office who possessed more extreme agendas, since, to prevail, these individuals had to appeal to a wider electoral base. However, candidates running for local offices could be more partisan. Orange County and the San Gabriel Valley just east of Los Angeles, for example, tended to elect very conservative candidates, while the San Francisco Bay Area usually elected strongly liberal politicians.30
Critics also may have been stymied by the justices’ willingness to defend their decisions in speeches and media interviews. In 1954 Chief Justice Phil Gibson told a reporter that “we bend over backward to be as certain as men can be that, great or small, all who come before us receive rightful judgments.” Two years later, in a speech before a gathering of American Legionnaires, Associate Justice Jesse Carter branded Los Angeles police chief Parker “immature” and lacking in judgment for criticizing civil libertarian rulings. Before the Cahan decision, Carter told the audience, police “could break into a home or automobile and use any evidence thus obtained in the trial of a person charged with a crime.”31
He defended the deliberative process, noting that debates over legal rulings are “not like a prayer meeting where everyone is expected to nod ‘amen,’ it is more like a battleground where opposing philosophies meet in hand-to-hand combat.” And Mathew Tobriner told another audience that “it is the duty of the judiciary to safeguard the rights of individuals.” Justices “must be the sentinels to keep this country true to itself and to its ideals.”32
Justices also willingly took on their critics in cases where they clearly discarded popular sentiment. For example, more than 4.5 million voters had backed Proposition 14, but that did not mean it was constitutional, Roger Traynor said. “Californians might suddenly take a notion to start coining their own money, but no matter how large a majority such an attractive proposition commanded at the polls, it would have to be ruled out on constitutional grounds.”
And after writing the majority opinion striking down the death penalty in 1972, Chief Justice Donald Wright told reporters he was “disturbed by attacks which go beyond the merits of the issues and challenge the court’s right and even the compulsion imposed upon it to examine and reexamine legislation in the light of prevailing constitutional tests.” These explanations did not quell criticism, but they made it difficult for opponents to garner enough public support to oust justices or coerce the court into changing direction.33
As she awaited confirmation as chief justice then, Rose Bird might have been excused if she envisioned many years, even decades, of presiding over an esteemed court that continued to issue pioneering rulings in a variety of areas. She had come of age and attended law school during a period when, as many rulings illustrated, “constitutional law should be a vehicle for social change.” She felt confident that her own sentiments dovetailed nicely with those of her antecedents and many of her soon-to-be—fingers crossed—colleagues. Critics might target specific rulings, but justices themselves had generally proven adept at defusing opposition; there was no indication they could not continue doing so for the foreseeable future.34
But whispers of change were in the wind in early 1977 that might impede Bird’s ability to lead the court with the same degree of success her predecessors had enjoyed. Cross-filing had ended by the 1960s, enabling more “extreme” candidates to make inroads politically. And high court rulings such as the 1966 overturning of Proposition 14 enabled conservatives to begin organizing a grassroots movement composed of whites who believed government had “overreached” in its efforts to achieve racial “fairness.” The movement quickly gained momentum, particularly in newly built suburbs of Orange and San Diego Counties.
Additionally, a unique set of circumstances had led to thirty years of liberal dominance on the court, even during years when Republican governors presided over the state. Between 1939 and 1977, California had three Democratic and three Republican governors. Republicans served a decade longer than Democrats, largely due to Earl Warren, who won three gubernatorial terms before leaving California for Washington DC in September 1953 to become chief justice of the U.S. Supreme Court.35
Yet Democrats had appointed most of the state supreme court justices during this period. Culbert Olson, Democratic governor for a single term from 1939 to 1943, made four judicial appointments, including Phil Gibson and Roger Traynor. Pat Brown served two terms, from 1959 to 1967. He made eight court appointments, including Mathew Tobriner and Stanley Mosk. The three Republican governors—Warren, Goodwin Knight, and Ronald Reagan—had a total of only five appointments. In ten years Warren had only a single supreme court appointment, as did Knight, who served for nearly six years. Reagan had three appointments in eight years. Jerry Brown had not made any judicial appointments prior to Bird and Manuel’s nominations, but in two terms he would go on to make seven high court appointments.
And justices appointed by Democrats remained on the court longer than those appointed by Republicans. Phil Gibson, for example, arrived at the court in 1939, became chief justice in 1940, and stayed on until 1964. Roger Traynor stayed for thirty years, from 1940 to 1970. Mathew Tobriner stayed for twenty years. Stanley Mosk had served for thirteen years at the time of Bird’s appointment and ultimately would remain on the court for another twenty-four years, becoming the state’s longest-serving justice. Only one Republican appointee during this period—Marshall McComb, appointed by Knight—stayed longer than a decade. As a result, the court retained its liberal bent even in periods when Californians elected Republican governors and U.S. senators.36
But in 1977 the composition of the court was about to change. Mathew Tobriner was in his seventies. At some point in the near future he would retire, to be replaced by an individual who was an unknown quantity. Tobriner’s departure would not present Bird with her most immediate challenge, however. Marshall McComb, appointed by Knight in 1956, was completely senile. During monthly oral arguments on pending cases, he often fell asleep, made nonsensical comments, or got up from the bench and wandered away. During weekly meetings with his fellow justices, he might inject himself into the discussion by intoning: “talk, talk, talk, squawk, squawk, squawk, yak, yak, yak.” Or he might phone a friend long distance from the telephone in the chief justice’s chambers to talk about the weather. He wore a pair of pig earrings to a meeting, and he urinated in a court bailiff’s car.37
Despite McComb’s impairment—“he was incompetent the whole seven years I was there,” said former chief justice Donald Wright—“there was no way of removing him. He was the ‘darling’ of a great group of individuals in California. . . . I attempted to get him to leave the court, unsuccessfully. I attempted to get his family to use pressure on him, and I was not successful in that.”38 In 1976, at the urging of McComb’s fellow justices, the Commission on Judicial Performance launched an investigation into his behavior, but he failed to show up to defend himself. In January 1977, citing “permanent mental disability,” the commission recommended his removal. As Bird awaited confirmation, McComb still clung to his job.39
The court also contained two justices likely to give Bird problems, each for different reasons. Associate Justice Stanley Mosk was said to be livid at being passed over for chief justice in favor of Bird. Mosk had had a long and distinguished career, beginning in 1939 when he served as executive secretary to Democratic governor Culbert Olson. Before Olson left office in 1943, he named Mosk, then only thirty-one, to the superior court bench in Los Angeles.
In 1958 voters elected Mosk attorney general. Six years later, Pat Brown appointed him to the state supreme court. Known for his wit, Mosk once described the archconservative John Birch Society as composed “primarily of wealthy businessmen, retired military officers and little old ladies in tennis shoes.” Asked at one point why he had left the rough-and-tumble world of politics for the staid life of a justice, Mosk said he hated fundraising, particularly “going into a reception, or a public dinner, and looking at everyone with a dollar sign over his head.”40
Mosk had long hankered for the court’s top job and was considered the frontrunner after Chief Justice Donald Wright announced his retirement in January 1977. When Jerry Brown chose Rose Bird instead, Mosk vowed to never again speak to the governor, and he kept his promise. Brown never publicly discussed his reasons for bypassing Mosk in favor of Bird, but he often told friends that he wanted to break down the entrenched “old-boys” network by appointing women and minorities to prominent and high-profile positions. Some observers also believed that Mosk had angered Brown in 1976 by authoring the majority opinion in the affirmative action case Regents of the University of California v. Bakke. Brown reportedly decided then that Mosk would never be chief justice.41
Allen Bakke was a thirty-five-year-old white man twice rejected by the University of California, Davis medical school. The school had a quota system under which it left a specific number of slots open for minority students, some of whom had lower grades than Bakke. He sued, claiming that the school’s affirmative action program violated his Fourteenth Amendment right to equal protection under the law.
Brown and most liberals supported affirmative action, but Mosk agreed with Bakke. Writing for a court majority, Mosk said “the program, as administered by the university, violates the rights of non-minority applicants because it affords preference on the basis of race to persons who, by the university’s own standards, are not as qualified for the study of medicine as non-minority applicants denied admission.”42
Some observers saw different forces at work in Brown’s refusal to elevate Mosk, however. San Francisco Examiner reporter John Jacobs argued that Brown “had an almost Oedipal need to trash the living symbols of his father’s political success.” Pat Brown had appointed Mosk, therefore Jerry Brown refused to make him chief justice.43
William P. Clark also could prove problematic for Bird, although he had been the only sitting justice to send a congratulatory note following her high court nomination. A fifth-generation Californian, grandson of a sheriff, and owner of a nine-hundred-acre ranch in San Luis Obispo County, Clark was a close friend of Republican governor Ronald Reagan. He had flunked out of both college and law school and also had failed the California bar exam on his first try, but passed it on his second attempt. He briefly practiced law and then left in 1966 to work on Reagan’s first gubernatorial campaign. In the late 1960s, Reagan named him to the superior court bench, first in San Luis Obispo and then in Los Angeles. In 1973 he appointed Clark associate justice of the supreme court.44
Clark barely won confirmation. Appointees needed two votes from the three-member Commission on Judicial Appointments. Chief Justice Donald Wright reluctantly cast the lone “no” vote. Clark was “not qualified by education, training and experience” to hold such an important job, Wright declared. He acknowledged the potential awkwardness of his decision, since he and Clark would be colleagues. Once on the court, Clark and Wright experienced a period of cool relations; over time, however, their relationship improved somewhat. But they were both men with similar backgrounds and life experiences. Bird could not count on the same level of respect or cooperation. Clark also was a staunch conservative, and Bird also knew he probably would dissent on any liberal court rulings.45
Finally, the 1960s and 1970s were transitional decades in state and national politics. The civil rights movement, Vietnam, and Watergate had placed public institutions and politicians under a microscope and challenged the notion that members of the privileged elite should be entitled to any deference or special treatment. Activists, including feminists, argued that the judiciary should reflect society as a whole and demanded the inclusion of ethnic minorities and women.
Conservatives had long railed, with little success, against “activist” judges both nationally and on the state level. The arrival of women and minorities—nonelites—gave them openings to argue that such individuals were “affirmative action hires” and, as such, undeserving of the high-status positions, which they had not earned. The 1966 gubernatorial election of Ronald Reagan infused court critics with optimism.
Soon after taking office, Reagan began targeting “activist” judges and circulating suggestions on how to shake up the judicial selection process. Then, as now, California gave governors the power to select their own judicial candidates, but many other states required chief executives to choose justices from a list of names supplied by a nominating commission composed of judges, lawyers, and members of the public. In some states, appointments also required approval from one or both houses of the legislature.46
Reagan wanted to take politics out of the appointment process, he said, and urged California to adopt the commission system. The proposal went nowhere, but the increasing focus on courts had some impact. Historically, voters had paid scant attention to judicial elections; by the 1970s the percentage of people routinely voting “no” on judicial candidates had risen by ten points, from 15 to 25 percent.47
Others quickly recognized the implications of this sea change. If people wanted judges held accountable, politicians aimed to please and began to promote the notion that judges needed to concern themselves with the will of the electorate in deciding cases. According to Berkeley law professor Preble Stolz, before the late 1960s and 1970s, both Republican and Democratic leaders defended controversial rulings, believing that the courts were law and justices’ decisions deserved support, even if they were personally distasteful. Over time, however, politicians began supporting only decisions with which they—and their constituents—agreed.48
Capital punishment was perhaps the issue that gave conservatives their best opening to target so-called activist judges, because it elicited visceral reactions from voters. The February 1972 decision ending the death penalty in California brought significant attention to the state supreme court, if not yet to individual justices. A rising chorus of politicians, pundits, and conservative groups declared that the ruling would release hundreds of vicious murderers to wreak havoc and vengeance on an innocent public.
“The court is setting itself up above the people and their legislators,” Reagan noted angrily when he learned of the ruling. “In a time of increasing crime and violence, capital punishment is needed.” Public opinion polls taken shortly after abolition showed an immediate bump in death penalty support: more than 70 percent of respondents said they favored it, up from less than 60 percent a few years earlier.49
Death penalty opponents countered that the decision commuted the death sentences, not the prison sentences, of condemned prisoners who still would spend the rest of their lives in prison. In their rulings eliminating capital punishment, both the California and U.S. high courts had cited the arbitrary and capricious nature of prosecutions that led to some defendants being sentenced to death while others who had committed far worse crimes received lighter sentences. Neither ruling permanently ended capital punishment. Both required state legislatures to establish specific standards as a condition of reinstating it.50
Soon after the high court decisions, pro–death penalty forces in California and elsewhere began unstinting efforts to reinstate capital punishment. They qualified an initiative for the November 1972 ballot; Proposition 17 stated: “The death penalty shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishment.” To sell the measure, state senator H. L. Richardson, an ultraconservative Republican, put together a twenty-minute film “laden with shots of bloody victims, Bible quotes and crime statistics.” The death penalty, Richardson proclaimed, was “the only thing that protects prison guards from men who are serving life sentences.” Voters needed little convincing, approving Proposition 17 by a two-to-one margin.51
Before it could be enacted lawmakers had to create specific standards to use in death penalty trials. They wasted no time. George Deukmejian, a Republican state senator from Long Beach, crafted a bill making the death penalty mandatory in murder trials if jurors found even one “aggravating” circumstance. The list of such circumstances included murder for hire, murders committed in the commission of other crimes, and causing a train wreck that resulted in death.52
The measure quickly passed both houses of the legislature, and Reagan signed it in December 1972. “It will save lives,” he said. Less than four years later, before California could execute anyone, the U.S. Supreme Court again ruled the death penalty unconstitutional, but only in those states—including California—that had enacted mandatory capital punishment laws. States had to give juries some discretion in sentencing, justices said.53
In February 1977 Deukmejian introduced new legislation enumerating “aggravating” factors that made defendants eligible for the death penalty but that allowed juries discretion in sentencing. Interviewed on television’s Today Show that same month, Brown vowed to enforce death penalty laws. “I’ll give no blanket pardons,” he said. “I will make a judgment in each case viewing the totality of circumstances, trying to be as compassionate as I can, but also mindful of the fact that whatever the law is, my oath of office is to carry it out.”54
Deukmejian’s bill was still working its way through the legislature when Brown nominated Rose Bird to a court beginning to experience heightened scrutiny. Bird had upended decades of tradition during her tenure as agriculture secretary, privileging farmworkers over growers. Before that, she had been a defense attorney. Death sentences were automatically appealed to the state’s highest court. Bird’s record put pro–capital punishment forces on high alert.
They recognized Brown as a particularly canny politician who could use Bird’s sympathy toward society’s castoffs to his own advantage. Brown opposed the death penalty. If critics came after him for court rulings overturning death sentences, he could shrug and point out that he was not the one making the decisions. He had no control over supreme court justices. As evidence, he could point to Donald Wright, author of People v. Anderson, a ruling that Stanley Mosk deemed “the most courageous opinion I can recall.”55
Reagan had known Wright only by reputation before appointing him to the state supreme court. Wright was an avuncular man, with a wide circle of friends in the legal profession and beyond. He loved books, music, and art. He had been a judge for twenty years—Earl Warren first appointed him to the municipal court bench in 1950. Introducing Wright to the media, Reagan called him “a man committed to the principle of judicial restraint, who can provide the leadership necessary to restore public confidence in our court system and return it to the highest position of integrity, leadership and respect.”56
Wright agreed that he believed in “judicial restraint” but disagreed that people had lost confidence in the courts. He was a registered Republican, he told reporters, but not an energetic one. In fact, he had not been active in politics since the Alf Landon presidential campaign of 1936, he joked.
Reagan quickly came to regret selecting Wright, since he turned out to be much less of a team player than the governor had anticipated, his opinion ending the death penalty being one example and his vote against William Clark’s confirmation another. Media reports suggested that Reagan had tried to get Wright to retire before his term expired in 1975, since Wright’s departure would give Reagan another appointment. Wright later denied this, however. He only met with Reagan once, he said, and the two never talked about the court. He initially intended to stay on the court for only a few years but soon changed his mind. “I did intend to resign, but when I got on the Supreme Court, I found it was such a stimulating life that I had no desire to leave. In fact, I wish I was there now!”57
As she awaited confirmation hearings before the Commission on Judicial Appointments in early 1977, therefore, Bird faced many unknowns, but she could be fairly certain on one front: the arrival of the court’s first woman justice—and the chief justice to boot—would shake up a judicial establishment that had long been entirely the purview of white men. As a woman, Bird stood unprotected by the cocoon of privilege that had long enveloped her predecessors.
Like many male judges and lawyers, she had attended an elite law school. But her subsequent experience differed in significant ways from theirs. No matter what their political persuasions or backgrounds, male judges had belonged since youth to the proverbial “old boy’s club.” In this chummy environment, men learned how to compete with one another while also developing professional and personal connections that eased the transition from youth to adulthood and from ambition to accomplishment. The lessons learned along the way were subtle and ingrained in a culture in which white men of a certain class were trained from birth to be society’s leaders.
While Bird had struggled to find work after law school, her male colleagues had easily transitioned to academia, prestigious government positions, or private law firms. When they arrived at the court, male justices had decades of professional alliances and friendships to call on. They drank at the same bars and belonged to the same clubs, many of which excluded women and minorities.
Jerry Brown may have been an unconventional governor, but he clearly had benefitted from these same male networks, starting with the friendship between his father and Mathew Tobriner. Pat Brown appointed Tobriner to the court. Soon thereafter Tobriner happily wrote a letter of recommendation for Jerry to Yale Law School and subsequently hired Jerry as his law clerk. When Jerry Brown decided to run for office, Pat Brown enlisted his wide circle of acquaintances and political allies on behalf of his son’s candidacy.
Tobriner mentored many other young men as well, including Richard Mosk, the son of Tobriner’s colleague Stanley Mosk. The junior Mosk served as Tobriner’s law clerk. So did Joseph Grodin, appointed by Jerry Brown to the Agriculture Labor Relations Board. Grodin credited Tobriner for all of his professional success. In the early 1950s, as a law student Grodin worked summers for Tobriner, who also helped Grodin win a Fulbright fellowship to London and then hired Grodin to work in his law firm.
When Pat Brown tapped Tobriner for the supreme court, Tobriner insisted that Grodin take over his law practice. The two men remained close, meeting once a week for lunch for more than twenty years. In the mid-1970s, Tobriner pushed Jerry Brown to name Grodin to the newly formed ALRB and then to appoint Grodin an appeals court justice. Finally, following his own retirement, Tobriner lobbied Brown to give Grodin a seat on the California Supreme Court.58
The relationship between justices Phil Gibson and Stanley Mosk offers another example of how the “old boys’ network” worked. Mosk grew up in the Midwest and graduated from the University of Chicago, where he started but did not finish law school. He subsequently moved to California and enrolled in Southwestern Law School in Los Angeles. Gibson was then in private practice and also taught at Southwestern. The two men became close friends. Gibson began referring to Mosk as his protégé. “To him it was a flippant remark, but to me it was a badge of honor,” Mosk recalled much later.59
Both men soon went to work for Governor Olson, Mosk as executive secretary and Gibson as finance director. “We became personal friends as well as associates,” said Mosk. Afterward the two men took different career paths, “but our close friendship continued. In our salad days, after some staid bar association functions, we closed many a North Beach [San Francisco] bar while happily musing about law, politics and life generally.” In 1964 the relationship came full circle. Gibson’s retirement as chief justice gave Pat Brown a court appointment. He elevated Roger Traynor from associate justice to chief justice and appointed Mosk to fill Traynor’s seat.60
A 1966 newspaper article on Roger Traynor detailed how this life of male privilege and camaraderie translated to the personal arena as well. Describing Traynor as “a gentle dynamo with a quiet voice and a roaring laugh,” the reporter also noted that despite Traynor’s heavy court workload, he “still finds time to take in a concert, putter about the garden, reread Franny and Zooey, write for the law reviews, play with his six grandchildren, attend judicial conferences, and shoot the breeze with old friends from the bench, the bar and law schools.”61
This, then, was the insider’s “club” that Bird—“a born outsider”—sought to join. In fact, all of the justices had long stayed at the male-only Sutter Club when they held oral arguments in Sacramento twice a year. “It was full of legislators, lobbyists and members of the governor’s staff,” former chief justice Wright recalled. “You’d see them every day. They’d be over to your table to speak to you, invite you to stop by and have a drink or something. They would be very friendly.” With Bird’s arrival, the ritual would change. She, or possibly all of the justices, would have to find another place to stay during the court’s Sacramento sojourns.62
Bird knew how to toss a football and had played on office softball teams. She had gone up against male attorneys in court and had negotiated a landmark farm labor bill in the state Agriculture and Services Department. However, all of her accomplishments had come with the help of male mentors, and she had been subordinate to all of them. Now, professionally she would catapult over all but one of her mentors and stand shoulder-to-shoulder with Brown as head of a massive state court system filled with men who had known each other for years, who understood the subtleties and nuances of politics, and who took their privileges for granted as they walked easily through the corridors of power.