In his 14 years as chief justice of the California Supreme Court, Ronald George developed a reputation for moderation and pragmatism. George retired in 2011, three years after writing the majority opinion in a historic 4-3 decision striking down California's ban on same-sex marriage. In his new book "Chief: The Quest for Justice in California," George reflects on his life and the law as part of the Court's Oral History Project.
George was first appointed to the bench in Los Angeles by then-governor Ronald Reagan. He soon found himself presiding over the notorious Hillside Strangler trial. It was the first of many cases involving the death penalty. Host Scott Shafer talks with former Chief Justice George about his legal career and how his views of capital punishment have evolved.
Ronald George: I became convinced that the death penalty does serve a valid purpose in terms of at least the people having the right to have a death penalty if that’s what they choose. However, one of the rationales for the death penalty is a deterrent effect that it is has on a certain number of cases, certainly not all, and when there’s so much delay as there is now – 25 years’ worth is the average stay on death row – I think it loses its justification.
So my attitude as chief justice was, we can make this work more functionally, but the legislature has to put some money into it, and basically the conservatives didn’t want to put the money into it, and the liberals didn’t care if it was 25 years of delay. So my attitude in a nutshell became “either fix it or get rid of it,” but it’s too costly given all the other needs we have for education and other public programs, to just have it on the books and have it as an empty charade.
Scott Shafer: I want to ask you about the issue that in some ways came to define your tenure as Chief Justice. I’m talking about the gay marriage issues which you dealt with on several different occasions. In 2008 you wrote the 4-3 decision, striking down the ban on gay marriage, and you did it in an unusual way, which you describe in the book. You met with all six of your colleagues before the oral arguments, and you gave each of them a copy of two different outcomes: one upholding the current law, and one striking it down. Tell me about that process – why did you decide to do it that way?
George: I had not solidified my own views and I thought that I would benefit by their input. So I met individually, I dropped in on their chambers, each of my six colleagues and told them that within a day they would receive this draft with two possible different outcomes, and that I would guide my views after getting input from them. And lo and behold, they ended up being split 3 to 3, so I was in the deciding position again, as often happened on major cases. And after evaluating their arguments and my own introspection on the matter, guided by the history of California law, I came to the conclusion that I did.
Shafer: What was the tipping point for you?
George: Basically the argument against gay marriage was largely historical – ‘Well, it’s always been this way.’ But of course if we go back and we look at women’s rights when they were basically the property of their husbands, we look back at school desegregation, these were all historically justified, but not constitutionally or morally justified. I ended up concluding that it was basically not enough to give it a different name, and that it was basically the equivalent of being allowed to sit in the bus, but sit in the back of the bus.
Shafer: Of course, Prop. 8 was later passed by voters, and the court by a 6-1 vote upheld that as legal change to the California constitution. I’m wondering what you think of California’s initiative system. There are so many legal issues that come before the voters, complicated issues. What’s your critique of California’s initiative system? Does it work? How would it be made better?
George: I wouldn’t want to see it abolished. California is among about two dozen states that have it, and it’s an important check on special interests and on the other two branches of government. And yet, it’s far too easy to qualify a measure, and pass a measure, including impinging upon individuals’ constitutional rights, through the initiative process. So I’d like to see some – better – processes, tightening it up a bit.
Shafer: How so? What comes to mind?
George: One thing that particularly bothers me is that once you pass something by initiative, unless the initiative expressly provides otherwise, you cannot change it through legislation to eliminate a glitch or an unintended consequence.
Shafer: You have to go back to the voters.
George: You have to go back to the voters. That happened with the Compassionate Use of Marijuana Act, where the court had to invalidate a measure by the legislature to define what was a reasonable amount of marijuana for a medical user to use. We had to invalidate that because of the constitutional provision that you can’t amend an initiative by legislation.
Shafer: Final question, I know you’re only 73, and you appear to be in great shape, so you’re not going anywhere any time soon, but what do you want to be remembered for?
George: Well as somebody who did his best to apply the law and to provide access to justice for the people of the state of California. It was a very rewarding task, difficult at times, but I’m very, very grateful to the four governors who gave me that opportunity to engage in that effort.