SCOCAblog by the California Constitution Center and the Hastings Law Journal

The free exercise right to life

The free exercise right to life

New scholarship from the California Constitution Center at Berkeley Law: David A. Carrillo, Allison G. Macbeth & Daniel Bogard, The Free Exercise Right to Life (2024) 104 B.U. Law Review Online 19. This publication is part of the Advancing Pregnant Persons’ Right To Life Symposium presented by the Boston University School of Law Program on Reproductive Justice, Northeastern Law Center for Health Policy and Law, and Center for Reproductive Rights, hosted by Boston University Law Review Online. On February 8, 2024 scholars of law, medicine, and religion from across the world came together at Boston University School of Law to...

California’s legislature can prevent costly conflicts between state housing laws and local voters

California’s legislature can prevent costly conflicts between state housing laws and local voters

Overview California has a housing crisis: according to one housing affordability index, only 15% of California households can afford a home at the state’s median home price.[1] The legislature has attempted to increase housing supply by requiring cities to meet new housing targets through housing elements, which are part of a city’s general plan.[2] But current housing element law leaves untouched the local direct democracy powers of initiative and referendum.[3] This has generated lawsuits and confusion. For example, Encinitas voters have quashed multiple housing element amendments with referenda, spurring litigation challenging that practice.[4] Those lawsuits produced divergent results: one judge...

Legislature v. Weber argument preview

Legislature v. Weber argument preview

In a radio interview with LAist today (click here for audio) Brandon V. Stracener, senior research fellow with the California Constitution Center, reviews the issues likely in play in the argument on Legislature v. Weber in the California Supreme Court. The case will be argued on Wednesday, May 8, 2024, at 9:00 am, in San Francisco.

The core powers analysis should apply to the electorate

The core powers analysis should apply to the electorate

Overview By granting review in Legislature v. Weber (S281977) the California Supreme Court may have committed itself to resolving one of the most difficult questions in California constitutional law: distinguishing between an impermissible constitutional revision and a permitted constitutional amendment. The California Constitution Center recently argued that this question is best avoided until after the election. That’s partly because engaging in preelection review likely requires the court to confront the constitutional conundrum presented by an initiative amendment that attacks a core branch power. If resolving that question is truly necessary, we argue here that the best approach is to apply...

An argument for zero-based state constitutional interpretation

An argument for zero-based state constitutional interpretation

Overview Article I, section 24 of the California constitution states that “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”[1] Nevertheless, the California Supreme Court generally does not interpret the California constitution independently. Instead, the state high court generally follows the U.S. Supreme Court’s interpretation of analogous constitutional provisions unless there are “cogent reasons” not to do so.[2] That is the wrong approach because it violates the will of the California voters to have the California constitution serve as an independent guarantee of rights, and it offends the California’s independent sovereignty from the...

Forcibly outing transgender students violates their state constitutional right to privacy

Forcibly outing transgender students violates their state constitutional right to privacy

Overview The Chino Valley Unified School District Board of Education recently adopted a policy requiring school officials to notify parents if a student requests to use a different name or pronoun than is on their birth certificate — drawing California into the national battle over transgender rights in education.[1] California Attorney General Rob Bonta sued the district, arguing that the policy violates California’s constitutional right to privacy.[2] He’s right. Transgender students meet the threshold requirements of a California constitutional privacy claim because they hold specific and legally protected privacy interests, a reasonable expectation of privacy in light of “widely accepted...

Event announcement

Event announcement

The California Supreme Court Historical Society presents: Looking Back: A Review of Significant Decisions of The California Supreme Court in 2023 Thursday, February 15, 2024 – Webinar12:00 PM to 1:00 PM Click here to register! Introduction by California Supreme Court Justice Joshua GrobanPresentation by David A. Carrillo, Berkeley Law There is no charge for this program. 1 hour MCLE Credit is available to California Supreme Court Historical Society members at no charge. Non-members may purchase MCLE credit for $25.00 This program is co-sponsored by: Alameda County Bar AssociationThe Bar Association of San FranciscoCalifornia Constitution Center at Berkeley LawCalifornia Lawyers AssociationCitrin...

SCOCA year in review 2023

SCOCA year in review 2023

Overview Our word to describe the California Supreme Court in 2023 is coalescence. It makes no difference how long a justice has served, who appointed the justice, what political party they vote for, or what kind of toast they like — the metrics we track for this court all show collapsing trends with few divergences. The three-way split between the appointing governor blocs remains: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger (Corrigan). But those looking for polarized voting blocs or even a lone dissenter will be disappointed: this court most often operates as a...

Appellate rules of thumb

Appellate rules of thumb

Overview Experienced California appellate practitioners sometimes rely on two rules of thumb. One posits that when the California Supreme Court grants a petition for review, the court reverses about 60% of the time and affirms the other 40% of reviewed cases; call this the “60–40 rule.” The other bit of conventional wisdom (call it the “rule of thirds”) holds that the court’s docket is divided roughly into thirds: about one-third each of automatic capital appeals, general criminal, and general civil cases. In this article we evaluate these hypotheses. We found that the rule of thirds is inaccurate: at least 40%...

Why we’re not worried about SCOCA productivity

Why we’re not worried about SCOCA productivity

Overview In this conclusion to our series on the California Supreme Court’s recent performance we argue that the valid concerns some have raised about the court’s opinion output do not constitute a crisis. Annual decision tallies are just one performance metric that decreases in significance when considered with other factors. Comparing the decades 2000–10 with 2010–21, in the later period there were fewer petitions for review, more vacancies, more new justices without prior judicial service, a new grant-and-hold policy, and changes in individual justice performance. Considered together those distinctions can explain both the higher annual figures in the past and...