Category: Analysis

Our friends at At the Lectern kindly linked to our SCOCA year in review 2025 and mentioned different sources of opinion counts, noting that “Stanford Law School’s Supreme Court of California Resources has what seems to be an authoritative list of 61 opinions for the 1987 calendar year.” Again, we concur and dissent, but explaining the differences will show why everyone can be somewhat right-and-wrong here. First, we concede a typo on our part: our count for cases decided by majority opinion in 1987 is 38 (not 37) and the article has been updated. Next, we should have been clearer...

Overview This year it’s apparent that the California Supreme Court has settled into a new normal. As our results show, over the past five years the court’s metrics in general have been rather consistent. Opinion counts remain low, unanimity has fallen to more familiar levels, straight grants are flat, civil cases continue to dominate the docket, and reversals are still the predominant result. This suggests that the court has moved out of the transition phase we posited in last year’s review and that the current trends may be durable. Here we also investigate the possibility we raised last year of...

Overview Courts sometimes signal to the legislature that it should resolve an ambiguity by amending the law. But the legislature does not always respond. Faced with legislative inaction, what should the judiciary do? This question arose in two recent cases, People v. Burgos and People v. Aguirre, which expose a deeper divide on the California Supreme Court over how to treat legislative silence when interpreting statutes. In Burgos and Aguirre the court resorts to a rigid, formalist framework, with two dissenting justices championing a functional inquiry. Yet under either approach lower courts would have a difficult time applying Estrada, reflecting...

Overview When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) 597 U.S. 215 reverted many questions about abortion rights back to the states, it set the stage for an interstate battle over telemedicine services that cross state lines. The opening moves in that battle are already playing out, and it is too early to predict who will prevail in that fight. But it may all soon be moot if the Federal Drug Administration restricts the current availability of mifepristone though telehealth. Several state attorneys general are currently urging the FDA to do so — a move...

Overview Facial recognition technology and AI-driven surveillance raise urgent and pressing questions about privacy. One company in particular, Clearview AI, has created controversy over its surveillance technology. The company has been banned in Canada, sanctioned across Europe, and faced lawsuits challenging its practices in the United States. One such lawsuit, Renderos v. Clearview AI, is currently making its way through California courts. The case represents one of the first tests for courts to determine how modern AI surveillance interacts with California’s once-strong privacy protections. As a matter of both law and public policy, the courts should take the opportunity to...

Overview Attorneys preparing for oral argument before the California Supreme Court need to know how long it will take the court to order the case on calendar for argument. A previous SCOCAblog article showed that in general the court is taking longer to do so than in past years. To give attorneys the best estimate of the current pace, we evaluated the court’s most recent performance by calculating the average time it took for argument to occur from September 2023 to June 2024.[1] For that period we found: We also tracked the interval between the preliminary oral argument notification letter...

Overview This article unpacks the relationship California courts have with federal constitutional law via the Aranda/Bruton doctrine, which protects criminal defendants in joint trials against inculpative hearsay statements admitted against their codefendant under the Sixth Amendment’s confrontation clause.[1] The 2023 Supreme Court case Samia v. United States appears to constrict the federal Bruton doctrine significantly. In effect, though, it won’t. Bruton and its progeny do very little to protect criminal defendants, and lockstepping prevents California from doing any more. Rather than insulating California from rights-abrogating federal law, Proposition 8 (also called the Victim’s Bill of Rights) forces California to sway...

Overview State officials would benefit from a clear analytical approach to combating the new presidential administration’s onslaught of executive orders. We propose adapting Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer as a model for evaluating how to deploy state power against attempts to impose policy by federal executive decree.[1] Youngstown was a horizontal separation-of-powers decision that analyzed federal executive action against congressional power; here we show how its framework applies equally well to vertical federalism conflicts between the federal executive and the states. Analysis A proposed model for approaching conflicts between states and the federal executive...

Overview The November 2024 election ballot in Alameda County saw an unusual occurrence: overlapping recalls of the Alameda district attorney and the Oakland mayor. Media coverage of these recalls portrayed those separate county and city contest results as being very similar. But a more detailed look shows a noted discrepancy in the vote totals among the Oakland voters who could cast ballots for both officials. Price did significantly better in Oakland than Thao, mainly because a significant number of the pro-Price voters did not also cast a ballot in the mayoral recall. This is probably explained at least in part...