The Supreme Court of California: How it Started, and How it Blazes Legal Trails Today

From its beginnings in the Gold Rush, the state Supreme Court continues to define the state today.

PUBLISHED MAY 15, 2023 1:58 P.M.
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The California Supreme Court has defined the state’s legal and political agenda for more than 170 years.

The California Supreme Court has defined the state‚Äôs legal and political agenda for more than 170 years.   California Supreme Court Archives   Public Domain

When California historians chronicle how the state was founded and why, the name James K. Polk doesn’t usually come up. But Polk, the 11th president of the United States, ran for president in 1844 on a platform of United States territorial expansion—a doctrine that in 1845 would receive the iconic name “Manifest Destiny.” 

His passionate belief in this doctrine, a few steps down the road, led to the origin of California’s highest legal authority, the state Supreme Court. 

The term “Manifest Destiny” was coined by newspaper columnist John O’Sullivan, who made lobbying for the annexation of Texas his life’s work. At that time (starting in 1836) Texas was an independent country

But Manifest Destiny—the belief that “Anglo Saxons” must inevitably rule all of North America—did not stop at the Texas border. At that time the United States itself stopped at the western Missouri border, but Polk had designs on the continent all the way west to the Pacific Ocean, including of course what was then the Mexican territory of California. 

In 1846, Polk acted on those designs. Using a border skirmish between U.S. and Mexican troops as a pretext—sort of a 19th-century Gulf of Tonkin—and with the support of Congress, Polk launched a war with Mexico. 

Not everyone supported the war. One outspoken Illinois congressman by the name of Abraham Lincoln publicly questioned whether Polk was even telling the truth about the allegedly inciting border incident, and writer Henry David Thoreau went to jail for refusing to pay taxes in opposition to the war, an action he later explained in his landmark essay “Civil Disobedience.”

The Constitutional Convention

Opposition notwithstanding, by 1848 and at the cost of 15,000 American lives (the equivalent of 215,000 today as a percentage of population), the U.S. won the war with Mexico. Under the peace agreement known as the Treaty of Guadalupe Hidalgo, the U.S. claimed California, as well as New Mexico and other western territories, in exchange for $15 million, or almost $600 million in 2023 cash.

Polk died of cholera at age 52 in 1849 just a few months after leaving office, having chosen not to run for a second term. He left behind a political mess over the newly acquired territories, specifically over the question of whether slavery would be permitted in the formerly Mexican regions.  

Perhaps as a result Polk and Congress never got around to setting up any type of government for the California territory, which was placed under the control of a military governor, General Bennett C. Riley, a veteran of both the Mexican-American war and the War of 1812. In 1849, to solve the problem of Washington’s inaction, Riley issued a proclamation that the territory must adopt its own constitution.

It was out of this process that California’s court system, presided over by the Supreme Court, was born. 

A Constitutional Convention took place, with 48 delegates from California’s various regions gathering at Colton Hall in Monterey to debate how the soon-to-be state’s government was set up. With the sudden population explosion caused by the Gold Rush, which got underway the previous year, the need for an organized government was clearly pressing.

The delegates hotly debated a wide range of issues, slavery near the top of the list. They ultimately resolved to prohibit the heinous practice. But just as important was creating a system that guaranteed justice would be administered fairly throughout the state. 

The death penalty was perhaps the foremost topic of debates over the justice system. The construction of jails and prisons was expensive and beyond the financial capacity of most California towns and counties. It was made much more economic sense to simply put persons convicted of crimes to death. Or in the case of lesser crimes, a good whipping or banishment from the local community would suffice.

Ultimately, economics won out and the death penalty remained a legal form of punishment in California. But perhaps the most important issue that governed debates over California's legal system at the convention was “popular sovereignty”—the principle that the ultimate source of governmental authority is the people. Government exists to serve the interests of the people, not the other way around. 

In those days, the “popular sovereignty” argument was also used to argue that voters in each individual state should have the power to determine whether slavery was legal in their state or not. Fortunately, that argument failed in California.

Popular Sovereignty and the Judiciary

When it came to the legislative branch of government, it was clear that popular sovereignty demanded that laws and lawmaking must be subject to the will of the people. But what about the Constitution itself? The laws in the Constitution essentially govern all other laws and everything the legislature passes. The laws in the Constitution would not be subject to the will of the people, which after all can change with the mood of the moment.

That led to some interesting debates. In an effort to stamp out “immoral practices” in California, some delegates argued vociferously for a ban on lottery games. They ultimately won that one, and it wasn’t until 1984 that a ballot referendum finally allowed a state lottery. Delegate William Gwin, later famous as the state’s first elected U.S. senator and an ardent advocate of slavery, argued for a constitutional ban on banking. That one didn’t get quite as far.

There were detailed debates on the judicial system as well. Some delegates felt that the principle of popular sovereignty required that lawyers be prohibited from participating in the appeals process because allowing lawyers would limit the right of appeal to the wealthy who could afford them. 

The very existence of lawyers, a faction of delegates believed, violated the principle of popular sovereignty because lawyers could employ legal technicalities and procedural sleight-of-hand to contravene the will of the people, contorting the judicial system in opposition to the very populace it is designed to serve.

The delegates also spent considerable time going back and forth on the role of judges, but in the end, decided that their specific roles as well as regulations on the lawyering profession were “trivial” matters properly left to the legislature. 

The role of the Constitution, according to delegate Kimball H. Dimmick—who later ran for a position on the state Supreme Court himself, and lost—was to establish “a fundamental judiciary system.” And that, the delegates did, setting up a hierarchical system with municipal and county courts at the bottom, and at the top, the Supreme Court.

How Justices Are Picked for the Supreme Court

The original Supreme Court first convened in Graham House, a onetime hotel at the corner of Kearny Street and Pacific Avenue in San Francisco on March 4, 1850—about six months before California was officially admitted as the 31st state in the union. The first court, as set up under the 1849 Constitution, consisted of three justices: a chief and two associates. The first trio was elected by the state legislature to six-year terms on the bench, with subsequent judges to be elected by the voters. 

With a Constitutional amendment passed in 1934, the state abolished elections for Supreme Court, and other appellate justices. Under the 1934 amendment, which remains in effect today, the governor appoints Supreme Court justices, whose appointments are then confirmed by the state’s Commission on Judicial Appointments. At the time of the next gubernatorial election after a justice is appointed, voters get their chance to weigh in, either approving the justice—or not. 

The retention votes are nonpartisan, meaning that justices are not identified as Democrat or Republican (or any other political party). To qualify for appointment, a prospective justice must have practiced as a lawyer in California, or served as a judge for at least 10 years, and those 10 years must have come immediately prior to receiving the governor’s nomination.

Since the 1934 change in how judges are picked and retained, only three justices have been kicked out by the voters. They all came in the same election, November 4, 1986, and included the first woman to be named chief justice of the court, and the first Latinx justice in the court’s history which at that time was nearing 140 years. 

Chief Justice Rose Bird was rejected by voters, largely over the same issue that had been such a point of contention more than a century earlier when the first Constitutional Convention created the court—the death penalty. The state supreme court serves as the final arbiter in capital punishment cases, and Bird had voted to overturn all 61 death sentences that reached her in the nine years she served.

Bird and two associate justices, Joseph Grodin and Cruz Reynoso, were removed by voters after an extensive and well-financed campaign of television advertisements funded by conservative activist groups in which the parents of murder victims railed at the court for vacating the death sentences of their children’s killers. 

The Early Court and Judicial Review

The California Supreme Court’s first Chief Justice was Serranus C. Hastings, for whom San Francisco’s Hastings College of Law was later named. Hastings, a native of New York state, had previously been Chief Justice of the Iowa Supreme Court, and after his term on the California high court ended, he assumed the state attorney general’s post. Unfortunately, as researchers discovered starting in 1969, Hastings also played a significant role in organizing a militia group that carried out numerous massacres of indigenous people whose land was coveted by white settlers for cattle ranching and farming. 

As a result, in 2022, Gov. Gavin Newsom signed a law erasing Hastings’ name from the law school he had founded in 1878 with a grant of $100,000 (about $3 million today). The school is now called University of California College of the Law, San Francisco, or more popularly, UC Law SF

The Supreme Court then, as now, was the final court of appeal. The public had long before accepted that the courts, and the Supreme Court above all, would have the final say on whether acts of the legislature were consistent with the constitution and therefore permitted, or overruled as unconstitutional. 

This principle was established almost a half-century earlier in the 1803 U.S. Supreme Court decision Marbury v. Madison, described by some historians as the most important Supreme Court decision in U.S. history. There’s an excellent argument that it was, for the simple reason that Marbury is the decision that made all of the subsequent Supreme Court decisions possible.

In Marbury, the court—in an opinion authored by Chief Justice John Marshall—for the first time declared that the Constitution was the “supreme law of the land,” and that any actions of Congress that contradict provisions of the Constitution must be invalidated. But who would do the invalidating? The courts, of course—and the Supreme Court would be the final authority.

Marshall’s principle of “judicial review,” though he specified no way for the court to enforce its authority nor did he establish that the courts were the only possible interpreter of the Constitution, quickly took hold in the American legal and political system and established the Supreme Court—which at the time didn’t even have its own building, operating instead from the basement of the Capitol—as the head of an independent branch of government with power essentially equal to that of Congress of the executive branch.

By the time that California created its own Supreme Court, almost 50 years after Marbury, its power of judicial review was understood and accepted. But the court’s scope and powers would grow quickly. In 1862 an amendment to the state constitution expanded the court to five justices and lengthened their terms to 10 years. And in 1879, a second California Constitutional Convention revised the court yet again, in response to California’s rapidly burgeoning population. The convention revised the Constitution and grew the Supreme Court to seven justices, the number it remains at today, and stretched terms once again, to 12 years. 

The Trailblazing California Supreme Court

The California Supreme Court has come a long way since issuing its first landmark decision in 1854, just four years after it came into existence. In that case, People v. Hall, the court—in an opinion written by Chief Justice Hugh Murray, who at age 29 was and remains today the court’s youngest-ever chief justice—ruled that the eyewitness testimony of a Chinese immigrant in a murder case against a white man was not admissible in court because the Chinese were “a race of people whom nature has marked as inferior,” and “incapable of progress or intellectual development beyond a certain point.” Therefore they had no right to give evidence of any kind against a “free white citizen.”

Fast forward almost 120 years, however, and the California Supreme Court was probably the most progressive in the country. In 1969, four years before the U.S. high court’s historic (and recently overturned) Roe v. Wade decision, California’s Supreme Court threw out the state’s own ban on abortion in the case People v. Belous.

Three years later, in the case People v. Anderson, the state’s high court threw again took up the the death penalty controversy and this time, thre it out altogether, ruling that capital punishment violated the California constitution—four months before the U.S. Supreme Court made its own ruling overturning the death penalty in the federal case Furman v. Georgia. Despite the U.S. Supreme Court decision, however, California voters later that same year overwhelmingly approved a constitutional amendment making the death penalty permissible again.

In 2008, seven years before the U.S. Supreme Court ruled in Obergefell v. Hodges that bans against same-sex marriage which existed in numerous states including California were unconstitutional, California’s Supremes ruled that the state’s own ban must be thrown out. 

Chief Justice Ronald M. George wrote for the narrow 4-3 majority that there was a “fundamental constitutional right to form a family relationship,” and that therefore “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

However, just a few months later California voters passed Proposition 8, a constitutional amendment reinstating the ban on same-sex marriages, and early in 2009 the state Supreme Court upheld the new amendment, though the decision allowed any marriages that took place before Prop 8 to remain valid. The ban remained in place until a federal appeals court struck it down in February 2012. The U.S. Supreme Court declined to hear the case, allowing the lower court’s ruling to stand.

And more than 170 years after it was first debated at the 1849 Constitutional Convention, the death penalty remains a recurring issue for the California Supreme Court. In one especially high-profile case, the court in 2020 invalidated the death sentence against Scott Peterson, who was convicted in 2004 of murdering his pregnant wife and their unborn child, in a case that at the time dominated national tabloid headlines.

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