The Lasting Impact of Jerry Brown’s Supreme Court

By now, in these final days before the election, most Californians have been reminded about Jerry Brown’s infamous appointment of his campaign chauffeur, Rose Bird, to the state’s high court.  Specifically, voters have been reminded that Justice Bird, and Brown’s four other Supreme Court appointees, thereafter proceeded to overturn 64 death penalty convictions—including that of Rodney Alcala, arguably one of the worst serial killers in American history.  “Soft” doesn’t quite capture it—the Brown/Bird Court was positively doughy on crime.

Predictably, in an effort at damage control, Brown now disowns his prior appointees—three of whom made history in 1987 when they became the first appellate justices in California history to be tossed out of office in a recall election.  Yet, Brown previously proclaimed that “the most important thing you do as governor is the judges you appoint.  I’m proud of every one of them.”

The fact remains that Brown’s five appointees to the Supreme Court decided hundreds of cases that are still the law in California.  As we look to the future to determine who will appoint the next slate of California judges, it is worth looking at the legacy Brown left us. The following highlight reel demonstrates how Jerry Brown’s hand-selected judiciary subverts the democratic will and continues to repel business from the Golden State.

First, in the 1982 case of Turpin v. Sortini, The Brown/Bird Court held, for the first time by any court in the nation, that a plaintiff can actually sue for being born.  Specifically, if a doctor doesn’t spot a genetic defect that, if detected, might have caused the parents to abort the future plaintiff, the doctor may be held liable in this state for “wrongful life.”  This decision is a thinly veiled inducement to California’s doctors and hospitals to shift their policies toward those of Margaret Sanger and the eugenics movement by recommending aborting unborn babies with disabilities. It also incentivizes doctors to err in favor of making false-positive diagnoses to this end.

Yet, the Court excoriated a doctor for making a false-positive diagnosis two years prior in the case of Molien v. Kaiser.  There, a misdiagnosed syphilis patient complained the error strained her marriage.  The Brown/Bird Court thus held that a plaintiff could recover for emotional distress, even without any evidence of physical harm, and even suggested that any false-positive diagnoses could constitute slander.  The dissenting opinion noted the decision works “a disservice to the public—who must ultimately bear the cost—by sanctioning claims for hurt feelings.”  This is one of the reasons Californians’ personal health care spending is among the highest in the nation.

The Brown/Bird Court also made employment costlier.  In a routine slip-and-fall case in 1983, a 422-pound employee decided to travel 3,000 miles and spend nine months at what was touted as the nation’s top obesity clinic.  The employee stuck his employer with the bill, and the Supreme Court ruled it had to pay.  This decision strikes fear into the heart of any employer hiring employees with disabilities.

As a final example, in the 1978 case of Cooper v. Bray, the Brown/Bird Court held a mechanic liable for negligence when he gave a lift to a customer, as a courtesy, after her car repairs were done.  The statute protecting the mechanic was struck down as unconstitutional.  The message to California’s automotive service industry:  No good deed goes unpunished—keep customer courtesy to a minimum.

California Supreme Court decisions tend to impact the shape of our state’s law—and our economy—for several decades.  With four of our current Justices approaching or already beyond the age of 70, our next governor will likely have the ability to redefine the Supreme Court, in addition to the lower courts.  Californians ought to consider whether they would have another “Brown/Bird”-style activist court, or whether they prefer to continue chipping away at the damage done by Jerry Brown’s former appointees.