The Court of Public Opinion Is Out of Order

In the wake of the California Supreme Court’s decision overturning the requirement of parental or judicial consent for a girl under 18 to get an abortion, the California ProLife Council, together with two state legislators, has announced a campaign to oust Justices Ronald M. George and Ming W. Chin, the two members of the ruling’s 4-3 majority who will be on the ballot next year for voter confirmation.

There’s a precedent for this, the pro-life people say: the 1986 expulsion of Chief Justice Rose Elizabeth Bird, which came about because voters disagreed with her judicial philosophy.

In 1986, I supported the ouster of Bird (though not of the two justices she dragged down with her, Cruz Reynoso and Joseph Grodin). The case against her was enormously stronger than the complaints voiced now against George and Chin. Whatever one thinks of the decision on abortion consent, an effort to knock judges off the court for their votes in one case poses a truly scary threat to judicial independence and constitutional rights in California.

The case against Bird was not based on any mere disagreement with the way she voted in a single case, or even in many cases. In 61 death penalty appeals, Bird voted to reverse the death penalty in all 61. This spotless record made it reasonable for voters to conclude not just that they disagreed with Bird’s votes or judicial philosophy, but that Bird was refusing to enforce the law. While she couldn’t hold the death penalty unconstitutional because the voters had written it into the state Constitution, she seemed to be finding some pretext in every case to keep it from being carried out.

To this could be added Bird’s apparent partisanship, her overall bad judgment and her special failings as a chief justice. She flunked the test of judicial competence, broadly defined.

The complaints against George and Chin are nothing like that. The court in the abortion consent case was doing its job: deciding a close, difficult question under the privacy clause of the California Constitution. The vote was not partisan; all four justices in the majority, including George and Chin, as well as two in the minority, were appointed by Republican governors. Whichever side lost would scream that the decision trampled fundamental rights--the girl’s or the parents’--but that’s just the nature of the issue before the court.

If judges can be sent packing because a majority of the voters disagree with a ruling, then judicial decisions become political decisions. Judges will be told in effect to decide cases not as they think the law requires, but as the latest Field poll tells them the voters prefer. Judicial independence then invites judicial unemployment. The California Code of Judicial Ethics, which says that a judge “shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism,” becomes a judicial suicide pill.

Among the casualties will be constitutional rights in California’s courts. Constitutional rights, such as freedom of speech at abortion clinics, among other places, protect individuals and minorities against the majority. To campaign against judges because of their votes affirming a constitutional right is to challenge the existence of constitutional rights.

Nor was there anything wrong with the way the court “reversed itself” in the abortion case. The court’s original vote was 4 to 3 to uphold the consent requirement, but the decision was not yet final when two justices retired and two new ones, Chin and Janice Rogers Brown, joined the court. When that happens, the court’s rules are clear: It’s the new justices, not the old ones, who vote on rehearing the case. Chin and Brown both voted for rehearing, and Chin then made a 4-3 majority to strike down the law.

There’s nothing new here. Cases were likewise “reversed” on rehearing when three new (conservative) justices replaced Bird and her colleagues in 1987. When the court’s membership changes, there are bound to be some cases not yet final, and so a new justice may change the result.

Those who don’t like the court’s abortion consent decision can seek to put on the ballot--as in fact is being planned--a constitutional amendment to overrule it. Voting justices out of office would not change the court’s decision, but a constitutional amendment would. An election debate over amending the state Constitution’s privacy guarantee would be faithful to our constitutional system; an assault on judicial independence would not be.