I return from a (well-earned) vacation in Hawaii with my family to read this opinion from the California Supreme Court. It's about the scope of federal preemption of the California Environmental Quality Act, which -- while important -- is not something that would normally thrill me enough to discuss at length.
But I wanted to talk about the opinion, if only tangentially, because reading it generated a larger idea in my mind that might perhaps have some traction. (Though, perhaps, not.)
What's somewhat unusual about this opinion is that there's a dissent -- the opinion is written by Justice Liu, and the partial concurrence and dissent is written by Chief Justice Cantil-Sakauye (joined by Justice Corrigan). That by itself is somewhat unusual; and the fact that it's unusual is itself unusual, or at least not typical. We're all used to the United States Supreme Court and its fractured political composition, which in turn generates lots of dissents -- and often somewhat vitriolic ones, at that. The California Supreme Court isn't like that. Lots of its opinions are unanimous. And when, as here, there's a dissent, what you see in today's opinion is what you generally see; a totally nice, polite, incredibly restrained and respectful written difference of opinion.
Which is nice, honestly.
But the thought I had was less about this dynamic -- one of which most court-watchers are generally cognizant -- than about how this might affect retirement rates. Because while I haven't had occasion to mention it, here's what's somewhat surprised me over the past decade or so: We've had what seems to me a lot of California Supreme Court justices voluntarily leave the bench. Most, if not all, of whom were in perfectly good health and could have continued to serve for some time.
You don't see that, by contrast, in the contemporary United States Supreme Court.
This has been an issue on my mind for some time, but it was generated again (obviously) by Chief Justice Cantil-Sakauye's announcement last week that she was leaving next year. She's only 62 years old, and has plenty of gas left in the tank. Last year, Justice Cuellar similarly retired at the spry age of 49. The year before that, Justice Chin retired. And before that, we had retirements by Justices Werdegar, Baxter, Kennard, Moreno and George -- all within the past decade or so, and all of whom (I believe) remain alive and kicking to this very day.
Try to get a similar list of United States Supreme Court justices who've left, particularly in the current political era. Good luck with that.
What occurred to me today is that I wonder if there's a linkage between these two realities. I wonder if justices are more likely to retire while young and in good health when, as today, there's perceptually not much politically at stake. When most (or many) of the decisions are unanimous anyway. When most of the justices -- and their likely replacements -- are of similar political dispositions. When the appointing authority, as in California, is likely to be from the same political party for most of the relevant period of time.
It's not that being a California Supreme Court justice is a crappy job. It's not. At all. So in some ways, even if your vote isn't totally critical, say, to avoid a disastrous 5-4 (or 4-3) result, why not go ahead and stick around. Indeed, arguably, the job's an even better one when you like your colleagues, they tend to see things the same way as you do, no one's a huge jerk, and you're not burdened with having to write dozens of passion-filled dissents every single year.
So why not hang in there?
I think the answer, however, is that to get there -- to become a justice on the California Supreme Court in the first place -- you've essentially got to be an A-type personality in the first place. You wouldn't be on the Court to begin with if you didn't like challenges. High impact, high important stuff. Making a big difference.
There's less of that, I suspect, when -- in most cases -- you're simply the seventh vote in a unanimous opinion; an opinion that would likely have come out the exact same way without you.
That's my theory, anyway. Were I more ambitious, I might do an in-depth empirical study of overall dissent rates and closely-contested decisions as correlated with differential retirement rates in state supreme courts. It might be super interesting.
But it's the summer. I'm just back from vacation. I'm going to instead take the easier route, at least for now. I'll just posit my intuition that the one thing probably has something to do with the other. Since, at a minimum, it makes sense. (At least to me.)
So a partial dissent by the soon-to-be-retired Chief Justice Cantil-Sakauye. Enjoy 'em while you can.
