Brown’s state Supreme Court legacy may include justices’ future roles

Nearly a quarter-century after three of his state Supreme Court choices were removed by voters in 1986, Jerry Brown got a second chance when he returned to the governor's office.

The court, once known as a liberal bastion, had become much more conservative in the years since -- as Republican governors George Deukmejian, Pete Wilson and Arnold Schwarzenegger made most of the selections.

Brown, mindful of his first experience as he hoped to steer the court to the left, was nonetheless aiming for intellectual stars, and none of his first three choices had any judicial experience.

"I was looking for people who you could say were 'learned in the law' -- a phrase you might not hear too much anymore," Brown told The New York Times in a 2014 interview. "I put the word out: Are there people who are scholars or of unusual ability?"

One of Brown's choices, Justice Mariano-Florentino Cuéllar, became the first to depart Thursday -- but it is on his own terms and during a time when Democrats are in firm control of state government. Gov. Gavin Newsom, Brown's Democratic successor, easily defeated a recall bid on Tuesday.

Cuéllar is leaving at the end of October to become president of the Carnegie Endowment for International Peace.

The decision puts Cuéllar back into the mix of work he did for years while a professor at Stanford Law School and as director of the Freeman Spogli Institute, the university institution that studies international affairs. He also worked as a domestic policy adviser for President Barack Obama. But his departure is unlikely to have a significant impact on the court he is leaving. The state Supreme Court has moved to the left during the past decade, because of the departure or retirement of conservative justices and the addition of five appointees by Brown and Newsom.

David A. Carrillo, executive director of Berkeley Law's California Constitution Center, said, "A justice who cares as deeply as Justice Cuéllar does about the court and the law would not feel free to leave if doing so would upset a delicate balance on the court."

"This shows the absence of any concern that his departure will provoke fundamental change in the court's decisions," he added.

Under the leadership of Chief Justice Tani G. Cantil-Sakauye, the court prides itself on how well justices work together. There are few 4-3 votes.

"Part of it is a function of the types of cases the state Supreme Court seems to hear," David S. Ettinger, of counsel at Horvitz & Levy LLP, said in a phone interview Friday. "The cases are less ideological."

Cuéllar, asked about his proudest moments on the court, mentioned a March opinion he wrote finding the state's bail system unconstitutional. In re: Humphrey, 2021 DJDAR 2813 (Cal. S. Ct, filed March 6, 2018). He highlighted the contributions of his colleagues, whose experience includes justices with years on the state appellate bench. The opinion was unanimous, which a recent study said is true of 90% of the court's cases.

Cuéllar may not be the only Brown appointee to the state Supreme Court to leave before retirement age. Justice < a href="https://www.dailyjournal.com/judicial_profiles/6309">Goodwin H. Liu waged an aggressive but unsuccessful campaign to persuade Newsom to appoint him as attorney general, and Justice Leondra R. Kruger has been mentioned as a possible U.S. Supreme Court nominee.

Ettinger added that the legacy of Brown's appointments should include their accomplishments in future positions made possible by his decision to choose them for the state Supreme Court.

Carrillo pointed out that one unintended consequence of choosing younger academics like Cuéllar is that they might get restless. "The court may not be the ideal post for a policy maven; sole leadership of a policy shop might be preferable to being one of seven," he wrote in a follow-up email.

Carrillo added that Brown's two tenures as governor, from 1975 to 2011, featured norm-shattering appointments. But the immediate future of the court looks different from the post-1986 conservative revival.

"Substantively, Jerry Brown's justices arguably ended and started two distinct liberal periods on the court," he wrote.