judicial activism

California Attorney General Jerry Brown is the worst state attorney general in America, as I documented in a recent study.

But how was he worse than Connecticut’s Richard Blumenthal and Oklahoma’s Drew Edmondson, who likewise received failing grades across the board in CEI’s recent study? (Just like Jerry Brown, they all got an “F” in each of the four judging criteria — (1) ethical breaches and selective application of the law, (2) fabricating law, (3) usurping legislative powers and (4) predatory practices.)

Jerry Brown tops the list because of his repeated refusal to defend state laws.   Defending state laws is an attorney general’s most basic duty.   Yet Brown has repeatedly chosen to attack his own state’s laws, seeking to nullify the democratic process.  Had it been successful, one of Brown’s attacks would have undermined longstanding laws that his office is charged with defending or enforcing, like California’s bill of rights for crime victims.

One example of a law Brown refused to defend was a state constitutional amendment prohibiting gay marriage (but not civil unions) passed by voters as Proposition 8.  This constitutional provision was upheld by the state Supreme Court, which rejected Brown’s argument that it violated the state constitution.  I publicly opposed Proposition 8, but by definition, a state constitutional provision cannot violate the very constitution of which it is a part, and it was wrong for Brown to argue to the contrary.

Brown also refused to defend Proposition 209, a state constitutional amendment banning racial set-asides and racial preferences.  That constitutional provision was upheld by a federal appeals court in 1997, but a dozen years later, Brown refused to defend it, claiming that its ban on racial discrimination was itself discrimination in violation of the Constitution’s equal protection clause.  That’s a logical absurdity.

Even critics of these laws criticized Brown for abdicating his duty to defend them. As the Los Angeles Times noted, Brown’s decision to attack Proposition 8 “surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so.” And even critics of Proposition 8 admitted that it had plausible legal defenses.  As one civil libertarian put it, Brown “ripped up his job description” when he unilaterally decided not to defend Proposition 8 in court. Even some liberal law professors criticized Brown’s position.  Santa Clara University law professor Gerald Uelmen said that Brown’s argument “turns constitutional law on its head,” and that he was unaware of any case law that supported it.

Brown’s rationale for not defending Proposition 8 was also troubling, for different reasons.  Brown didn’t simply object to Prop. 8 on federal constitutional grounds (The Supreme Court and other courts have rejected challenges to state bans on gay marriage (Footnote 1).)

Instead, he made a far more radical claim: that Proposition 8, which was itself part of California’s constitution, violated that same constitution because it restricted a “fundamental right” recognized by the courts based on the state constitution. (Footnote 2)  The logic of Brown’s argument would call into question vital California laws that the Attorney General’s office is supposed to enforce, harming crime victims. For example, the state’s death penalty was struck down decades ago by the staunchly-liberal California Supreme Court, which claimed it violated the fundamental right to be free of “cruel or unusual punishment” under the state constitution. (Footnote 3) That decision was subsequently overruled by an amendment to the state constitution. (Footnote 4)  Under Brown’s argument, serial killers would escape the death penalty, because the amendment reinstating the death penalty would be invalid under his logic. (Never mind that the state attorney general’s office has the designated function of defending the death penalty against court challenges in capital cases. (Footnote 5)) The attorney general’s argument would also invalidate the state constitution’s bill of rights for crime victims, which was passed by voter initiatives in response to decisions by the California Supreme Court that were perceived as soft-on-crime. (Footnote 6)

Many bad court rulings, like the U.S. Supreme Court’s horrible 1857 Dred Scott decision, are based on mistaken notions of fundamental rights that the people later reject through Constitutional amendment. (That infamous decision claimed that slaveowners had a fundamental property right to their slaves that trumped contrary statutes. The Dred Scott decision was later abrogated in part by Constitutional amendment.) The constitutional amendment process is not only a quintessential exercise of democracy. It can also be a vital safeguard against government tyranny. Brown sought to undermine that safeguard.

Footnote 1: See Baker v. Nelson, 409 U.S. 810 (1972) (affirming the Minnesota Supreme Court’s ruling in Baker v. Nelson, 291 Minn. 310 (1971), which rejected a challenge to a state’s ban on gay marriage); see also Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cit. 2006).

Footnote 2: See Jessica Garrison and Maura Dolan, “Jerry Brown Asks California Supreme Court to Void Gay-Marriage Ban,” Los Angeles Times, December 20, 2008.

Footnote 3: See People v. Anderson, 493 P.2d 880, 6 Cal.3d 628 (Cal. 1972).

Footnote 4: See California Constitution, Article I, section 27

Footnote 5: See, e.g., Ayers v. Belmontes, 549 U.S. 7 (2006) (California attorney general’s office represented state in death penalty appeal); Brown v. Sanders, 546 U.S. 212 (2006) (same); Brown v. Payton, 544 U.S. 133 (2005) (same)

Footnote 6: See California Constitution, Article I, section 28 (promoting public safety in many ways, such as by limiting bail for dangerous defendants, broadening use of prior convictions as evidence against them, and limiting use of judicially-fashioned exclusionary rules in favor of defendants, all in response to state court rulings broadening defendants’ rights); Brosnahan v. Brown, 32 Cal.3d 236, 299, 314, 651 P.2d 274, 314, 18 Cal.Rptr. 30, 70 (Cal. 1982) (upholding “The Victims’ Bill of Rights,” whose section 2 repealed a broad state constitutional right to bail; “SEC. 2. Section 12 of Article I of the Constitution is repealed. Sec. 12. A person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. A person may be released on his or her own recognizance in the court’s discretion.”). Chief Justice Rose Bird, who was appointed by then-Governor Jerry Brown, dissented from the ruling, in a hyperbolic dissent. Bird, who later defended O.J. Simpson and claimed his case was about racism, was subsequently removed from office by California voters in 1986. See Rose Elizabeth Bird, “The Jury Did Its Job: Put the Blame Where It Belongs,” Los Angeles Times, October 6, 1995, at B9 (alleging racism in reaction to O.J.’s acquittal); John Marelius, “Rivals Are Lining Up to Run State in ’11,” San Diego Union Tribune, Feb. 15, 2009 (“Brown was roundly criticized for naming an inexperienced chief justice, Rose Bird, who ultimately was removed from office by voters”) (http://www3.signonsandiego.com/stories/2009/feb/15/1n15gov224926-rivals-are-lining-now-run-state-11/)