Changing of the Guard at State’s High Court

by Archer Norris PLC

The California Supreme Court is undergoing a few changes. Justice Joyce L. Kennard has retired and has not yet been replaced. And Justice Marvin R. Baxter is leaving at the end of the year. Much has already been written about Governor Brown’s opportunity to continue remaking the Court in his (latter-day) image. Having appointed Justice Goodwin Liu, speculation is rampant about just how liberal Brown’s “new” court will become, and which demographic each new justice will represent. This post has nothing to say on that.

Instead, this post takes a moment to reflect on the loss to the public of these two devoted jurists and fine people. The necessary distance that judges must maintain from the public they serve and the lawyers appearing before them, often makes it difficult to gauge judge as person. And many advocates, driven as they must be by their client’s cause, may not care about such things. The Court will shape the law, and the individual justices will shape the Court’s decisions. Fair enough. But having been fortunate to spend a little time with Justice Kennard and Justice Baxter outside the realm of judge and lawyer, I have gained some small insights into their personalities. And so I write to say a few words about what will be lost to the legal community, rather than to speculate about what the new Court will look like.  

Justice Kennard’s fierce independence and keen interest in oral argument are well known. If one knows her only by the command presence she so easily manifests, it might be possible to conclude there is little warmth–but that conclusion would be dead wrong. I have been fortunate to spend some time with Justice Kennard outside the realm of advocate and Court. Over the last few years, Justice Kennard generously shared her time with some of my U.C. Hastings appellate clinical program students. In chambers, Justice Kennard made us all feel like long-time friends: insisting that we have cookies and refreshments; regaling us with her passion for the majesty of the law and the fidelity the law demands; reminding us–as tender aunt, not scolding justice–of the serious responsibility we have as advocates to strive for perfection in all things; and endearing us with her willingness to share thoughts about, among other things, her love for gardening. Each of our meetings ended long after the appointed time, and only out of our worry that we might wear out our welcome, not because Justice Kennard tired of our visits.

I met Justice Baxter at a reception at U.C. Hastings. Up until that moment, the prism through which I viewed Justice Baxter was that of all advocates–my reading of his decisions and occasional presence at Court arguments. But at the reception, and at a chance meeting in a nearby eatery a few years later, I was impressed by how soft-spoken and gentle Justice Baxter is. Free of (most) of the constraints that we don upon entering the Court, we shared long conversations about public school roots, public universities, pro bono programs, the Central Valley, and sports cars. And each time I walked away, I felt as if I had met with a friend I had known for many years.

Because we are always fighting a client’s battles, we see jurists as those who can make or break our case and have little reason to think of them in any other light. Because we are ethically bound to remain distant, we have little opportunity to meet with those deciding the cases. Others will write about the rich contributions Justices Kennard and Baxter have made to life and law in California. Others are already writing about the new Court that is in the making. I have written here to say farewell not just to two fine jurists, but also two nice people.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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