Why California's chief justice is taking on the Legislature

The chief justice of the California Supreme Court has injected herself into the state’s budget debate, saying that the state’s courts are in crisis after seeing their budget cut by 25 percent in four years.

The comments by Tani Cantil-Sakauye highlight the question of when it is appropriate for judges to become involved in politics.

In this case, experts say Justice Cantil-Sakauye is well within her rights. As the head of the state’s Judicial Council, which directs policy for the California courts, she has an advocacy role beyond her post as chief justice.

But with courts playing a delicate and crucial role in the arbitration of the recently reinvigorated culture wars, judges might need to be careful, others add. Courts still hold a comparatively high level of public trust, but that it precisely because they are seen as being above politics, says Matthew Hale, a political scientist at Seton Hall University in Orange, N.J.

“As judges become engaged in fundamental political debates … or reengaged in social issues like gay marriage and abortion the perception courts are not political could change,” he says. “The actions of Cantil-Sakauye in fighting budget cuts could continue to feed that trend.”

It is a fight, however, that needs to be fought, say many legal analysts. Budget cuts are taking a toll on the judicial system in states nationwide, and judges need to speak up, they add.

“In general, I think it is dangerous for judges to interject themselves into politics, but in this case she is telling hard truths that need to be told that the public and legislators need to hear,” says Robert Pugsley, a professor at Southwestern Law School in Los Angeles.

Her remarks were delivered Monday in her first “state of the judiciary” speech since being appointed and are part of an ongoing power struggle between herself, as head of the Judicial Council, and some lawmakers. A few weeks ago, she suggested that legislators were on the verge of violating the separation of powers between the Legislature and the courts.

The point of contention is a bill that would shift spending authority from the Judicial Council to individual trial courts. The bill has passed the Assembly but is now stalled in the Senate.

Lawmakers have expressed concerns over huge cost overruns in a technology project – supposed to be finished three years ago – that would link trial courts in California’s 58 counties. Its costs have mushroomed from $260 million to $1.9 billion. Judge Cantil-Sakauye calls it “desperately needed.”

As CEO of the entire California judicial system, Cantil-Sakauye is just doing her job, says Jesse Choper, a constitutional scholar at the University of California, Berkeley, Law School, in an e-mail.

“Making a polite but strong plea for adequate support of the judicial system is her job and not unusual in any way,” he says.

Legal experts draw a distinction between Cantil-Sakauye’s comments and those of state Chief Justice Rose Bird, whose outspoken opposition to the death penalty led to her becoming the only chief justice in California history to be removed from office by voters in 1986.

“My sense is that she is not violating an ethical code at all, but rather has every right and proper motive to speak out in crisis,” says Professor Bennett Gershman of Pace Law School in White Plains, N.Y. “Rose Bird was a polarizing figure because of her views on a very liberal California Supreme Court. By contrast, Cantil-Sakauye is trying to save the court system.” 

It is a debate that could play out nationwide.

“It is a national story because budget cuts are hitting many states,” says Barbara O’Connor, director emeritus of the Institute for Study of Politics and Media at California State University, Sacramento.

“At a time when citizens feel like that have no rights and despise their elected officials, their one avenue of checks and balances against inequities of all types is being foreclosed,” she says. “Small claims courts, entry level courts, and criminal courts are closed to them as immediate recourse to their grievances. They also have less opportunity for legal representation at any level."