Setting Precedent

California Supreme Court Justice Mariano-Florentino Cuéllar has served in many roles, including as a professor of law at Stanford University and an official in the Clinton and Obama administrations. He sat down with Jeannine Bell at Indiana University–Bloomington to discuss his experiences as a judge, working in administrative law, and considering current legal issues in the United States. Bell, the author of Policing Hatred: Law Enforcement, Civil Rights, and Hate Crime and Hate Thy Neighbor: Move-in Violence and the Persistence of Racial Segregation in American Housing, began by asking what drew Cuéllar out of the academy and onto the bench. Their conversation has been edited for length and clarity.


Jeannine Bell (JB): So, talk about why you wanted to be a judge.

Justice Mariano-Florentino Cuéllar (MFC): I didn’t initially. When the stars aligned and I had that opportunity, I suddenly began to connect the dots. I realized that serving on this court was a chance for public service unlike anything I’d ever done before, and it was an opportunity to connect so many things that I care about. I take the law seriously. It’s intellectually challenging and requires you to constantly wrap your mind around new facts and problems. It gives you opportunities for outreach that are different from the ones I’d have at a university: talking to a bunch of high school students, going to a community college, talking to lawyers in San Joaquin County, California, going back to the Imperial Valley––where I went to high school––and speaking to lawyers and teachers there.

The experience of serving on the Supreme Court of California has also exposed me to the complexities of the state of California and, frankly, the United States––how they run and how they work. There’s something that appeals to me also about fidelity, that the notion that at court and particularly in a court of review, the job really can be summed up in one phrase: you’re there to try to make sure institutions deliver what they’ve promised.

JB: I’ve written a little bit about judging—its politics and the difficulties that judges face with respect to politics. In California, there have been a couple of dustups between governors and judges, such as the dispute over Rose Bird, a judge who lost an election. How do politics affect your work as a judge?

MFC: In many ways, the answer to this question is simple because partisan politics simply don’t enter into what my colleagues or I do, and I feel very confident about this conclusion. That said, I will acknowledge that perhaps political reactions to our decisions seem more muted because we live in a time when the California courts––though seen as important, and generating some cases triggering lively public attention––are not the center of political attention, generating the kind of ferment and disagreement akin to what occurred when Rose Bird served on the court.

Courts have an important and complex civic role. We have a constitutional system, and within it, courts have a great deal of authority. We have to be humble about that and understand the limitations that courts have as well. We wait for disputes to come to us. We try to remain aware of the limits of our role as well as its importance. But in the end it’s true that even if you compare our court to courts in other countries, our court just has a lot of responsibility and will sometimes make decisions that reverberate in the political process. So, there is a line-drawing aspect to this, which requires us to be careful not to get tangled in partisan or conventional politics. But it is appropriate to acknowledge that we are a coordinate branch of government. In our administrative capacity, we also share authority with the legislature over certain matters involving legal education or aspects of the state bar.

Also, there might be some opinions that people write concurring opinions that call on the legislature to consider taking up an issue or consider clarifying something that is very ambiguous in our law. So that comes with the territory. And finally, there’s the reality of how the word “politics” has multiple meanings. If you take a version of it and apply it to what happens inside a multi-member tribunal, it can help you understand that even when partisan politics and external politics are not part of what you do, there is a reality that you have to collaborate with people who will sometimes have different views. And that give-and-take is appropriate; it’s even crucial to the work we do.

Some people might feel like what I’m describing evokes the trade-offs that may occur in other institutions––the sense that colleagues might say, “you’re here and I’m there and maybe we can meet halfway.” But in a court, it always comes with some other dimension: we’re deliberating about something specific, involving constraints rooted in law and prudence, and real-world litigants. So we have to persuade each other in that process and sometimes we achieve it and sometimes we don’t. That’s why we have dissents. These are important to keep the integrity of the process, so people can see how we sometimes have disagreements that persist even as we respect the process. So we can be honest and say, “I wish I could agree with you, but I’m stuck on this and I have to use my voice to make sure people understand that there’s a real division of opinion on this.” I view it more as the reality that, as you go further up in the judicial system, you get more judges because we want to provide safeguards where we are our own checks in a way, and we can make sure to take each other’s views seriously.

JB: Controversially, the California Supreme Court is struggling with the death penalty and the time it takes. All eyes are on California and possible reform with respect to the time it takes to get cases through the system.

MFC: So, California has a constitution that allows the Supreme Court to choose essentially every case that comes before it, to look for the issues that raise questions of statewide importance, serious problems of law where a miscarriage of justice occurred. But all death penalty cases are automatically appealed to our court.

These cases pose special challenges for us. All of us take those cases very seriously. It matters not to us whether or not the actual sanctioning is taking place in any particular governorship or at any particular moment. These cases are of extreme importance to us. They also are different in the dynamics that they can trigger because they are appeals that we are adjudicating rather than situations where we have discretionary review. So each one of these cases might raise dozens of issues rather than one, two, or three very focused issues which we have in our traditional grants of review because an effective lawyer is going to do the best he or she can to represent his or her client in every way possible.

Every time we rule on those discrete issues, we are still setting a precedent for the state, potentially, even on cases that don’t involve the death penalty. So even in cases that come up on the selection of jurors, or an evidentiary call, and we are deciding the issue, we have an effect, potentially, outside the death penalty. So that means these cases are particularly tricky to work on and deliberate about, and they take a particularly substantial amount of our time. I would say somewhere between 15-30% of our work is death penalty cases, depending on how you count, when you count the number of cases and the amount of time we spend on them.

When we work on [death penalty cases], we do our best to take seriously the complexity of the record. We are talking about thousands and thousands of pages, and it is certainly a concern to make sure we do the best we can to address the issues raised in those cases as soon as possible. But there are many practical constraints that can sometimes make that difficult. I will just add that I’ve found those cases to be daunting for another reason, too: the fact patterns are dramatic and sad, heartbreaking, and especially tragic. One has to bear in mind that the facts are always important in any adjudication, but, at the same time, extreme facts can sometimes weigh on judgments in ways that make it especially important to fit the facts to the doctrine and to understand how all the pieces fit together.

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