In an op-ed piece in yesterday’s Daily Journal [subscription], a retired superior court judge expresses his displeasure with US Supreme Court Justice Stephen Breyer’s recent dissent in Glossip v. Gross, a separate opinion that was joined by Justice Ruth Bader Ginsburg and that questioned the death penalty’s constitutionality. While he was at it, the retired jurist also threw in some digs at California Supreme Court Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger. They were cheap shots.
The op-ed piece says, “The state Supreme Court and its three new, inexperienced justices who have never tried or presided over any trial, and unaware or familiar with California legal history, have already reversed five death penalty cases. . . . Perhaps the new members of the court have been reading cases from the 9th Circuit undermining the death penalty for the last decade, or subscribe to the Justice Stephen Breyer model: dispense with precedent and impose personal opinion.” It goes on to ridicule “court opinions written by judges who have never tried a case and sit on an appellate level justifying reversals in academic language jurors would have ignored.”
Singling out the three newest justices for criticism is misleading at best. It takes more than three to make a majority on the court. And, indeed, unmentioned in the op-ed is that all five of the death penalty reversals to which the piece apparently refers were unanimous decisions. (See here, here, here, and here.) Also not mentioned is that none of the five opinions were “written by judges who have never tried a case” — four were authored by Justice Carol Corrigan, who was a Senior Deputy District Attorney and Deputy District Attorney for a dozen years and a trial judge for seven years; one was written by Justice Ming Chin, who was a trial judge for over two years. Finally, two of the five opinions were issued before Justices Cuéllar and Kruger were even on the court.
Instead of factually inaccurate ad hominem attacks, critics of California Supreme Court decisions should address the merits of the decisions themselves. The closest the op-ed piece comes to doing that is to grudgingly concede that two of the five death penalty reversals “are arguably correct.”
