SCOCAblog by the California Constitution Center and the Hastings Law Journal
Overview In their SCOCAblog article “Fix the fatal flaw in SCA 10” Allison Macbeth and Elizabeth Bernal argued that California abortion rights, which rely on the same unwritten privacy interests the U.S. Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization, are similarly vulnerable to judicial repeal. They suggested that an initiative measure could add specific, detailed reproductive liberty rights to California’s constitution. Absent that specificity, Macbeth and Bernal argued that a California version of Dobbs remained a risk. Macbeth and Bernal were right to argue for improvements to a law that will constitutionalize a woman’s right to choose...
Overview In this article we speculate about possible scenarios and candidates for California’s next chief justice. We have no inside knowledge and advocate for no one. Our historical analysis identifies three scenarios: most likely, less likely, and least likely. The most likely scenario is a sitting associate justice being elevated to chief justice, and in this scenario a Court of Appeal justice probably gets nominated to fill the empty seat. The less likely scenario is a Court of Appeal justice being nominated to both fill the empty seat and to serve as chief justice. The least likely scenario is a...
Overview In 2021 Texas enacted a law (SB 8) that prohibits abortions after the fetal heartbeat has been detected and empowers private citizens to sue anyone who has (or intends to) perform, aid, or abet such an abortion.[1] The law also bars “enforcement” by state and local government, except that a court must award an injunction, statutory damages not less than $10,000, and attorney fees if the claimant prevails.[2] California has now enacted a copycat law (SB 1327) that employs the same mechanisms to permit citizen enforcement of certain California firearms laws.[3] Doing so wrongly validates a law that undermines...
California’s Chief Justice Tani Cantil-Sakauye will retire, she announced this morning in a media conference. Chief Justice Cantil-Sakauye will not file for retention election, and will vacate her position when her term ends in January 2023, having served a full 12-year term as California’s highest judicial officer. Appointed by Governor Arnold Schwarzenegger, she assumed office on January 3, 2011. She will be 63 when she leaves office, having served 32 years on the bench since Governor George Deukmejian first appointed her in 1990. Like her colleagues justices Carol Corrigan and Martin Jenkins, Cantil-Sakauye served at every level of California court...
Overview In this article I address what I view as a significant breakdown in California’s constitutional order. I begin with an overview of separation of powers doctrine to explain the importance of the non-delegation doctrine — which prohibits the state legislature from giving away its lawmaking powers. I then explain California’s three tests for distinguishing between legitimate and illegitimate delegations of authority. And in all of this, I aim to address a controversy: that Governor Newsom’s exercise of “all police powers of the state” in formulating rules restricting individual liberties and shuttering businesses during 2020–21 violated separation of powers and...
Overview California Chief Justice Tani Cantil-Sakauye assumed office on August 25, 2010, and secured retention in the November 2010 general election. Her current term ends on January 1, 2023. When asked at the recent SCOCA Conference 2022 whether she intended to seek another term, the Chief Justice said “I’m still thinking about it.” We confirmed how long the Chief Justice has to consider that question: the deadline for a SCOCA justice to file for retention in the November 2022 election is August 15, 2022. Analysis California appellate justices serve 12-year terms.[1] Before their terms expire on the Monday after the...
Overview The reproductive choice rights the United States Supreme Court recognized almost fifty years ago rely on two unwritten fundamental rights: to privacy, and liberty interests in retaining control of one’s body. With the U.S. Supreme Court poised to abrogate those rights in Dobbs v. Jackson Women’s Health Organization, Californians will retain their state constitutional rights and statutory protections for reproductive liberty. Yet those California constitutional rights rely on a similar foundation — judicial interpretations of California’s textual constitutional privacy right. That leaves the state constitutional protection for reproductive liberty vulnerable to the same judicial reinterpretation that federal abortion doctrine...
Friday June 10, 20229:00am to 4:15pmBroadcast live from the California Supreme Court conference center. Click here to register! Program outline 9:00 – 9:55 Chief Justice Tani Cantil-Sakauye keynote. A discussion on the pandemic’s effects on the judicial branch, the Judicial Council’s efforts to continue providing access to justice, and the successes and lessons of remote appearances that should continue to improve courthouse availability. We will discuss how the pandemic’s lessons about conducting government remotely can improve civic engagement and access to the governing process. 10:00 – 10:55 David Ettinger and David A. Carrillo will review the court’s major decisions in...
Overview The document below is the hypothetical text of a possible California constitutional amendment and potential proponent’s argument, as an academic example of the sort of action that California’s legislature could, in theory, take if it wished. California Constitution Center fellows developed this after a conversation with Lieutenant Governor Eleni Kounalakis as an academic thought problem in the hypothetical case of a U.S. Supreme Court decision that removed federal constitutional protection for abortion. No one knows for sure if or when that might happen, so this is only one possible academic approach to what is at present a purely hypothetical...
Friday June 10, 20229:00am to 4:00pmBroadcast live from the California Supreme Court conference center. Click here to register! The California Constitution Center presents its conference on the California Supreme Court, in partnership with: Institute of Governmental Studies, Citrin Center, Bar Association of San Francisco, Alameda County Bar Association, California Academy of Appellate Lawyers, Hastings Law Journal, Santa Clara Law Review, UC Davis Law Review, San Diego Law Review, and California Law Review. This free event is eligible for six hours of MCLE credit.
