SCOCAblog by the California Constitution Center and the Hastings Law Journal

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...

Intersex individuals are protected by the California constitution’s right to privacy

Overview Children born with intersex traits are often subjected at birth to unnecessary sex-defining surgeries without their consent. This article argues that the California constitution’s privacy protection for bodily autonomy extends to an intersex child’s interest in making intimate decisions that will shape the course of their life. Cosmetic surgeries fail to further any compelling interest justifying the invasion of this fundamental privacy right. Consequently, intersex children who are subjected to nonconsensual sex-defining surgeries have viable constitutional privacy claims against the medical actors involved. Analysis Nonconsensual surgeries to “normalize” sex trait variations can cause lasting harm to intersex children. Intersex...

SCOCA is taking longer to decide its cases

SCOCA is taking longer to decide its cases

Overview The California Supreme Court is taking longer to issue fewer opinions compared with its past performance. In the 2022 review we showed that over the past 24 years the court’s unanimity rate steadily increased, while its opinion output steadily declined. In today’s study of the same period we examine how long the court takes to produce an opinion, measured by the time from the last reply brief being filed to the case being ordered on calendar for argument. The results show that this value has increased over time. Combined, the three data points suggest that over the past 24...

Can California pleas resurrect its unconstitutional conditions doctrine?

Overview The fact that most California criminal cases end in plea bargains presents an unconstitutional conditions problem.[1] Plea bargains involve prosecutors exchanging charging leniency for a waiver of constitutional rights.[2] Yet California’s unconstitutional conditions doctrine limits the government’s “authority to condition . . . a privilege or benefit” on waiving constitutional rights.[3] Whether plea bargains satisfy California’s unconstitutional conditions doctrine depends on whether the doctrine itself remains viable. It also depends on a local jurisdiction’s idiosyncrasies, complicating possible reforms. Because litigation around this issue is not feasible, legislative reforms are the best path toward solving this unconstitutional conditions problem. Analysis...

Revising California law to allow recovery when police violate constitutional rights

Overview The California Supreme Court should overrule its decision in Michel v. Smith, which granted police supervisors immunity for their officers’ misconduct.[1] Michel was wrong in 1922 and has become more wrong since. Worse, courts have interpreted Michel so that its exceptions — which were necessary to its holding — no longer exist. Overruling Michel would give plaintiffs remedies when police violate their constitutional rights and increase pressure on police supervisors to end inhumane and unconstitutional practices. Analysis It is nearly impossible to pursue police misconduct claims under federal law Congress adopted 42 U.S.C. section 1983 to authorize suits alleging...

A (Partially) New Approach to Fund Infrastructure

Overview As has been extensively covered, California’s once-toothless housing law has grown some fangs — at long last. More housing looks very likely to get built around the state. This housing will put big demands on local infrastructure. In this short essay, we will consider one approach to fund some of this infrastructure. It is not wholly novel, but combines reasonable (and permissible) steps that we believe have not previously been combined. This approach is desirable because, ultimately, it requires the approval of a majority rather than a supermajority of the electorate. Policy and History Infrastructure (roads, bridges, sewers etc.)...

The Hodge approach is the best solution to California’s water disputes

Overview California water law has significantly evolved since the state first constitutionalized the doctrine of riparian rights in 1928. Although the article X, section 2 principle of reasonable and beneficial use remains the backbone of California water law, the law has shifted away from priority rights and toward prioritizing efficiently exploiting water sources to their “fullest extent.” Priority rights are still an important factor courts consider in dispute resolution, but courts now increasingly recognize how the limited availability of California water sources forces the law to match the volume of a water right to its reasonable and beneficial use. The...

SCOCA year in review 2022

Overview In some ways this was a big year for the California Supreme Court, with two retirements and two new justices, which included a chief justice retiring and a new chief justice ascending. It was a small year from another perspective: the court issued the fewest opinions in the past 24 years. In this annual review we move away from past concerns about a Brown-Newsom split. Our past research shows that the appointing governor blocs make little difference on this court, and there is now a plurality: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger...