In 1998, I was appointed Chair of the Republican Party’s Judicial Evaluation Committee.  Specifically, the committe was asked to evaluate the Justices and Judges up for election in 1998.  The most public individual up for election that year was Chief Justice Ron George, who, through a set of very ugly legal maneuverings, was able to reverse the decision of the California Supreme Court prohibiting abortions for minors without parental consent.  George was not content to allow the decision of the then Lucas Court affirming the law requiring parental consent to stand.  In his first act as the Chief Justice, right after the retirement of Chief Justice Lucas, George, abusing his power as the new Chief Justice, went about acting to reverse the decision.  He had no scruples about ignoring the tradition of the court, stare decisis, or judicial restraint to promote his own version of how society should be organized.

Then Republican Party Chair Mike Schroeder stacked committee to support Chief Justice George (after he appointed me chair), but I made my case to the committee. I argued that a Justice who would ignore the tradition of the court (Justice George used his power as Chief Justice to reverse the Lucas decision simply because the personnel on the court had changed, which had never been done in California before that time), or stare decisis or principles of judicial restraint (the dissenting opinions of Justices Baxter and Rogers Brown demonstate how tortured the majority decision had to be to reverse the Lucas decision) could not be trusted to be a justice that would exercise judicial restraint in the future.  I was overruled by the majority of the committee, who felt it was more important to have a justice that was tough on crime, rather than one who knew and respected the role of judges in a constitutional republic.

They were wrong, and Chief Justice George’s decision on Proposition 22 is the culmination of his judicial activism.  Chief Justice George was then, and is now, a judicial activist, and the fact that he was appointed by Republican Governors doesn’t change that fact.  It merely points out how foolish some Republican Governors can be.  The overriding consideration for judicial appointments (or our support of a judicial candidate) cannot be their support of one or more parts of the Republican agenda, it has to be their view of the role of a judge in our constitutional republic.  Judges are not legislators.  They don’t get to write law.  They don’t get to use the Constitution as an excuse to substitute their idea of a good law for the law enacted by the Legislature or the people through initiative.

Yet that is exactly what Ron George did in the Prop. 22 case.  There is no law anywhere allowing the marriage of homosexuals, yet, not only did the court declare that Prop. 22 violated the State’s Constitution, they declare a positive right for homosexuals to marry.  That is judicial activism at its worst.  This decision is not historical because of its declaration of rights for homosexuals, it is historical because it is the nadir of judicial restraint in California.  The Legislature might as well go home, and let the Supreme Court do the Legislature’s job.  According to Ron George, the Supreme Court is obviously better at that job.