The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts. Since 1850, the court has issued many influential decisions in a variety of areas including torts, property, civil and constitutional rights, and criminal law.
Under the original 1849 California Constitution, the Court started with a chief justice and two associate justices. The Court was expanded to five justices in 1862. Under the current 1879 constitution, the Court expanded to six associate justices and one chief justice, for the current total of seven. The justices are appointed by the Governor of California and are subject to retention elections.
According to the California Constitution, to be considered for appointment, as with any California judge, a person must be an attorney admitted to practice in California or have served as a judge of a California court for 10 years immediately preceding the appointment.
Similar to the California Court of Appeals, the California Supreme Court fills vacancies by requiring approval from the Governor, two commissions, and the voters to select judges for 12-year terms. To fill a vacant position, the Governor must first submit a candidate's name to the Commission on Judicial Nominees Evaluation of the State Bar of California. The Commission on Judicial Nominees Evaluation (JNE) is the first official stage of review for the governor’s potential nominees. Established in 1979, the JNE was created in the wake of a controversial appointment by Lieutenant Governor Mike Curb, who was acting in the absence of Governor Jerry Brown. Lieutenant Governor Curb appointed a judge without the permission of the Bar or Governor Brown. This led to Governor Brown revoking the appointment and the California state legislature creating Government Code Section 12011.5, requiring the JNE to review any governor-selected judicial candidates before they appear before the Commission on Judicial Appointments. Members of the JNE do not have to have previously practiced law to serve on the commission, but at least 80% of the commission must be currently practicing. There must also be at least one former judicial officer. These commission members work in small teams to investigate potential nominees within 90 days of the Governor’s decision.
Next, the Governor officially nominates the candidate, who must then be evaluated by the Commission on Judicial Appointments, which consists of the Chief Justice of California, the Attorney General of California, and a senior presiding justice of the California Courts of Appeal. The Commission holds a public hearing and if satisfied with the nominee's qualifications, confirms the nomination. The nominee can then immediately fill an existing vacancy, or replace a departing justice at the beginning of the next judicial term.
If a nominee is confirmed to fill a vacancy that arose partway through a judicial term, the justice must stand for retention during the next gubernatorial election. Voters then determine whether to retain the justice for the remainder of the judicial term. At the term's conclusion, justices must again undergo a statewide retention election for a full 12-year term. If a majority votes "no", the seat becomes vacant and may be filled by the Governor.
On the other hand, if a Justice chooses not to run for another term on the bench but still intends to finish their current term, the governor cannot immediately replace that justice. Instead, the governor only proceeds through the appointment process, and the nominee must wait until the end of the term of the retiring justice so that the nominee may be approved by voters.
California’s method of Supreme Court judicial selection is largely driven by gubernatorial appointment and voter retention, which is not the standard nationally. Several states, including Michigan, Texas, and Nevada, use contested elections with several candidates competing for a single seat. These systems are supported for maintaining more accountability among judges, though they have been criticized for potentially opening the door to corruption. Opponents of these elections argue that the financial donations necessary in campaigning can lead to favoritism and corruption among judges. There is no evidence of a significant relationship between campaign contributions and judicial decisions made by elected judges in Nevada or Texas, two states that use nonpartisan and partisan elections, respectively. However, in Michigan, where quasi-partisan judicial elections are used, there is evidence of such a relationship.
The electorate has occasionally exercised the power not to retain justices. Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin were staunchly opposed to capital punishment and were subsequently removed in the 1986 general election. Most notably, Chief Justice Bird was the target of a state-wide campaign to unseat her led by prominent Californian conservatives. These included the California Republican Party, the California District Attorney’s Association, and the Defeat Rose Bird organization. This coalition spent over $2 million in the year prior to the election in their coordinated campaign. While Chief Justice Bird had the support of hundreds of law professors, only about half of Sacramento County Bar Association lawyers felt the same, and about two-thirds of California’s lower court judges opposed her. She mostly faced widespread resistance among California voters because of her history with capital punishment, having reversed death penalty rulings on several occasions for procedural issues. Chief Justice Bird also dissented to previous decisions, arguing against striking anti-death penalty jurors for reducing accurate representation. She also faced public scrutiny for not extending California’s liability rules to drugs. While Chief Justice Bird’s supporters argued that her removal was an intimidation tactic that would harm judicial independence, they were ultimately unsuccessful as Chief Justice Bird lost her retention election. Newly reelected Governor George Deukmejian was then able to elevate Associate Justice Malcolm M. Lucas to Chief Justice and appoint three new associate justices (one to replace Lucas in his old post and two to replace Reynoso and Grodin).
Between 1879 and 1966, the court was divided by the state constitution into two three-justice panels, Department One and Department Two. The chief justice divided cases evenly between the panels and also decided which cases would be heard "in bank" (en banc) by the Court sitting as a whole. During the late 1920s, the court gradually transitioned to routinely hearing all appeals in bank, apart from two unusual exceptions in 1941 when it again tried to sit in departments. The 1966 formal abolition of the department system merely confirmed how the court had been actually operating for quite some time.
Oral argument was mandatory only for in bank hearings of appeals, which meant that many appeals were decided by three-justice departments on the briefs alone. However, the state constitution required department decisions to be unanimous to produce a final judgment. Any dissent automatically triggered an in bank hearing. After a constitutional amendment in 1966, the Court currently sits in bank (all seven together) when hearing all appeals. When there is an open seat on the court, or if a justice recuses himself or herself on a given case, justices from the California Courts of Appeal are assigned by the chief justice to join the court for individual cases on a rotational basis.
The procedure for when all justices recuse themselves from a case has varied over time. For a 1992 case, the chief justice requested the presiding justice of a Court of Appeal district (different from the one where the case originated) to select six other Court of Appeal justices from his district, and they formed an acting Supreme Court for the purpose of deciding that one case. However, in a later case where all members of the Court recused themselves when Governor Schwarzenegger sought a writ of mandate (Schwarzenegger v. Court of Appeal (Epstein)), seven justices of the Courts of Appeal were selected based on the regular rotational basis, not from the same district, with the most senior one serving as the acting chief justice, and that acting supreme court eventually denied the writ petition. In a yet more recent case (Mallano v. Chiang) where all members of the Court recused themselves on a petition for review by retired Court of Appeal justices on a matter involving those justices' salaries (that apparently involved matters up to and including the 2016–2017 fiscal year), the Court ordered that six superior court judges be selected from the pool that took office after July 1, 2017, to serve as the substitute justices for the six sitting justices, with the senior judge among that group serving as the acting Chief Justice; that acting Supreme Court eventually denied the petition for review.