Signs Point to Rifts on State High Court

SAN FRANCISCO —  Since his appointment as chief justice of the California Supreme Court four years ago, Ronald M. George has tried to lead the Republican court on a centrist, nonideological path.

But Thursday, George was unable to persuade a majority of his colleagues to issue a restrained ruling on Proposition 209, the 1996 anti-affirmative action initiative that divided the state.

The sharply worded separate opinion he wrote in the case was a highly public indication that George’s efforts to mold the court had suffered a setback, according to legal experts familiar with behind-the-scenes details of the court’s work.

George appears to have tried to head off what some saw as a full-scale attack on affirmative action in Thursday’s majority opinion.

But he encountered strong negative feelings about affirmative action from some of his colleagues, who also may have believed he was overreacting to the broad decision.

Failing to budge the majority, George was forced, instead, to dissociate himself from one of the court’s most politically contentious rulings.

“The fact that he couldn’t pull a majority to a more restrained view suggests he is trying to herd a bunch of cats up there,” said University of Santa Clara law professor Gerald Uelmen, an expert on the court.

All seven justices agreed that a San Jose “outreach” program for public contracts violated Proposition 209’s ban on racial and gender preferences.

But four separate opinions on the case revealed “a rare glimpse of the degree of contentions that seems to pervade the court,” Uelmen said.

The fact that the dispute was between George and Justice Janice Rogers Brown, the author of the majority opinion, publicized a particularly strained relationship on the court.

George has tried in the past to persuade Brown, the court’s most junior justice, to tone down her dissents, court sources have said, but she has persisted.

Beyond that, the fact that George had to resort to a separate opinion castigating his court’s ruling on a major case shows how difficult it is for him to bring the strong-minded justices into line, analysts said.

George prides himself “on building consensus and being a conciliator, a middle-of-the-road figure who almost never dissents and writes for the court himself as often as he can,” said UC Berkeley law professor Stephen Barnett.

“I think he was genuinely upset by what he calls the divisive nature of Brown’s opinion,” Barnett said. “After all, it is an enormously divisive issue in California.”

But for all the trappings of the chief justice--the chief assigns cases and runs a court system that is the largest in the world--George has only one vote on the seven-member court.

And the powers he does have may have been undermined by other aspects of his role, noted another observer close to the court, who spoke on condition of anonymity. George is more active than previous chief justices have been in administering the state’s enormous court system, the observer said.

“The price he must pay for his time away from the court is an inability on occasion to influence his colleague.”

Brown is a philosophical conservative whose independence and tendency toward passionate prose have irritated other members of the court from time to time. In the affirmative action case, she used her opinion to recite the history of civil rights law and included her sentiments on how other courts had erred.

“With the approval of Proposition 209,” Brown wrote, “the electorate chose to reassert the principle of equality of individual opportunity as a constitutional imperative.”

Some legal analysts who have praised Brown in the past appeared startled by the ruling.

“It was gratuitously political and divisive . . . a quasi-political statement,” said Barnett. “Brown’s opinion amounts to a vote for Proposition 209.”

Uelmen said the opinion “outraged” him and contained language that would “offend a lot of people.”

But McGeorge School of Law professor J. Clark Kelso said Brown’s language lacked “incendiary rhetoric” or an offensive tone, and he was puzzled by the chief justice’s strong reaction to it.

“The chief is right that the majority is treading in politically sensitive waters,” Kelso said. “I still, on balance, don’t see any great harm in the majority opinion.”

Signing on to Brown’s opinion were Justices Marvin Baxter and Ming W. Chin, two of the court’s most conservative members, and Justice Stanley Mosk, the court’s only Democrat, who has long held views critical of affirmative action.

They “are not extremists,” said Kelso. Indeed, Chin and George are often in agreement.

George, in a separate 31-page opinion signed by Justice Kathryn Mickle Werdegar, described the majority ruling as “less than evenhanded.” He accused the majority of disparaging all affirmative action with such phrases as “proportional group representation” and “entitlements based on group representation.”

Some analysts faulted George for striking out at the court majority, contending that his attack drew more attention to the ruling than it would have received otherwise.

Civil rights lawyers said much of what Brown had written was what lawyers call dicta: language in an opinion that expresses a judge’s opinions but which does not have the force of law and does not dictate future decisions.

But beyond his philosophical disagreements with Brown, George has reason to fear repercussions from her rhetoric. During his tenure, he has worked assiduously to woo the Legislature and the governor’s office, now in Democratic hands, in an effort to win more money for California’s court system and salary hikes for judges.

Several years ago, under the tenure of former Chief Justice Malcolm Lucas, the court issued an opinion upholding term limits in a tone that some described as gloating. The opinion inflamed the Legislature, and court funding was threatened.

George is aware that “the court has really been hurt in the past by sticking a thumb in someone’s eye when it wasn’t really necessary for the opinion,” Uelmen said.

This time around, the Proposition 209 case was so important to many Democrats that Atty. Gen. Bill Lockyer personally appeared before the court to ask the justices to allow outreach programs.

While the other justices who signed the majority opinion might not have seen “the dangers lurking” in it, “the unique perspective George has of what damage opinions can do may have given him a much greater reason to find it offensive,” Uelmen said.