by Jon S. Tigar, Judge of the Alameda County Superior Court
Bay Area ALI members gathered on October 27 at the San Francisco offices of Shearman & Sterling (thanks to partner and ALI member Jim Donato) to hear from California’s newest Supreme Court Justice, Goodwin Liu. After Judge Yvonne Gonzalez Rogers gave a brief overview of the Council’s recent activities (including the admission of three new Bay Area ALI members), Justice Liu delivered an engaging address focusing on the relationship between legal academia and the bench.
As the touchstone of Justice Liu’s address, he drew on the remarkable career of California Supreme Court Justice Roger Traynor, who served on the court for 30 years, from 1940 to 1970 (and whose son, Michael Traynor, was a distinguished President of the Institute from 2000 to 2008). Prior to his service on the Supreme Court, Justice Traynor—like Justice Liu—had been a professor at Boalt Hall (now UC Berkeley Law).
Justice Liu noted that the number of law professors who are appointed to the appellate bench has declined over time, and that he was the first since Justice Traynor to be appointed to California’s Supreme Court. Justice Traynor’s career, however, demonstrated that the intellectual curiosity, rigor, and breadth of interests associated with legal scholarship are good preparation for the bench and helped produce some of California’s most important legal precedents.
Justice Liu focused on three different ways in which Justice Traynor’s academic background influenced his work as a Supreme Court justice. First, Justice Traynor frequently looked to law-review articles and other scholarly works, and was very comfortable citing academic sources in his opinions. Justice Traynor also believed social science and policy analysis could bring rationality to the law. For example, in the landmark 1948 case Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17, Traynor, citing a variety of sociological, psychological, and anthropological research to show that the racial categories in California’s anti-miscegenation law were not grounded in reality, wrote the opinion that struck down the law.
Second, Traynor’s academic background let him “see the forest and not just the trees”—he could see the whole breadth of the law, and not merely each case in isolation. Justice Liu said, “Traynor employed this perspective to canvass accumulated precedent, to question the continuing relevance of the principles or policies underlying the precedent, and to clarify or reformulate the law where needed.”
Third, “like most people who have spent time in legal academia, Traynor approached the law with a healthy dose of legal realism. He believed in law as a means of solving human problems, and he believed law should be adapted to the needs of the age.” Traynor’s ability to combine legal realism, judicial reasoning, and the lessons of experience—and his deep understanding of the public-policy concerns that animate the law—were behind some of California’s most important decisions, including People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905, the 1955 case that established the exclusionary rule in California and significantly influenced the same holding by the U.S. Supreme Court six years later in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
After his remarks, Justice Liu answered questions from the audience on topics ranging from the way justices communicate with each other about pending cases to the role legal scholarship currently plays in influencing the court.
The reception with Justice Liu was a high-water mark in an evolving tradition of Bay Area membership events, and the ALI looks forward to future gatherings of its Bay Area members.