Stanley Mosk : Will Dean of High Court Hang It Up?

Stanley Mosk has trouble imagining retirement, even though he knows he is in the twilight of his career, one that began before most people in this state were born.

“I want to end my career when I want it to end, not when some campaign promoter chooses to end it for me,” said the dean of the California Supreme Court, not quite announcing that he will run for another 12-year term this November.

With the court under siege as never before, Mosk said during a series of recent interviews that, if he retired now, people would assume he had been “bullied” from the bench, an unseemly end to a political career begun half a century ago.

Impact on Policy

From his start in the liberal politics of the 1930s, Mosk rose to become one of the most influential justices to serve on the state court. By virtue of his opinions and votes on the burning issues of the day--from the death penalty to racial quotas to abortion--his impact on social policy has been as great as any legislator and perhaps some governors.

Bespectacled, his gray hair thinning, Mosk works out of an unremarkable fourth-floor office in the drab building that houses the Supreme Court. He is a proud and proper jurist, a stickler for grammar with an occasional acerbic streak.

At age 73, Mosk knows the odds are long against him becoming chief justice, a job of power and prestige he long coveted. But in his 22nd year on the court, Mosk has become a sort of elder statesman of the judiciary. And he worries about the political forces currently swirling around the justices. In almost fatherly tones, he defends his court.

‘Easy Victim’

“Unfortunately,” he said, “the critics of the courts have had an effect, like water dripping on a stone. Public respect for the courts is finally starting to wear away. Political demagogues find the court an easy victim in that the judiciary is not able to respond. It’s like shadow boxing. You can’t lose.”

To his friends, Mosk is the link between today’s court--one tarnished by strident political attacks and, a few years back, internal turmoil--and the court of the 1960s and early ‘70s, which was widely considered the nation’s best.

Long after justices of that era have died or retired to law school faculties, Mosk remains among the court’s most prolific members. He stands apart from his brethren in part by his longevity, but also by his considerable political savvy and an independent streak that leads him to take frequent conservative stands.

A former state attorney general and Los Angeles trial judge, Mosk has never been the court’s most liberal justice. In some recent dissents, he has acidly chastised his colleagues for giving schoolchildren rights against unreasonable searches by teachers, for ordering a Boys Club to admit girls and for letting cities with rent control restrict landlords from tearing down their buildings.

“I have a resentment against government saying, ‘Thou shalt not,’ ” Mosk said.

Mosk does not see himself as growing more conservative with age, except perhaps on questions of government encroachment into private property rights. He acknowledged, though, that his brand of New Deal liberalism “probably makes me a good deal more conservative today than the modern liberals.”

“Maybe time has passed me by,” he said, “or maybe I have stubbornly adhered to a philosophy arrived at several years ago.”

Fits the Mold

For the most part, however, he fits the mold of a liberal, activist judge. His rulings have broadened environmental law, ensured that handicapped parents may have custody of their children, allowed minors to have abortions without parental consent, required cities to let Gypsy fortune tellers ply their trade, held drug companies accountable for the ill effects of their products and widened the rights of criminal defendants on the basis of the state Constitution.

Even before he announces his plans, one of the two main conservative political groups involved in the court campaign, Californians to Defeat Rose Bird, is seeking Mosk’s defeat. In fact, much of the conservatives’ criticism over liberal rulings by the court under Chief Justice Rose Elizabeth Bird is actually over opinions written by Mosk.

But the anti-court campaign remains firmly focused on Bird. While she is pilloried in an unprecedented campaign to unseat her in November, Mosk has been the beneficiary of glowing tributes in law journals.

Relishes the Role

Mosk relishes his role as dean of the court. Besides the accolades, he has a pulpit from which to speak. And speak he does, on issues that other justices will not discuss--from the death penalty, which he abhors but votes to uphold, to the “crazy initiative process.” He likened one proposition that tinkered with criminal law to brain surgery performed by popular vote.

“I’ve tried to keep alive the traditions of this court’s preeminence,” he said.

In a series of interviews with Mosk and his colleagues, past and present, a picture emerged of a justice who is self-assured, keenly interested in his place in history and fundamentally pragmatic.

He is a pragmatist with passion, admirers say. His longtime researcher, Peter Belton, called him an “old-line liberal,” one who usually comes down against bureaucrats, prosecutors and corporations in favor of individuals.

UC Berkeley law professor Stephen Barnett, who is critical of some of Mosk’s work, nevertheless called him “one of the more conspicuous and interesting Supreme Court judges in the country,” a “force to be reckoned with.”

Switching Positions

Barnett criticized Mosk for sometimes switching positions without explanation. In some cases, Barnett added, Mosk failed to clearly state whether he was basing his rulings on federal or state law, allowing him to “avoid responsibility” by implying that federal law compelled a particular decision.

Donald Barrett, a former chief staff attorney for the court who worked for two chief justices, said: “Mosk’s (majority) opinions are excellently crafted. Sometimes his dissents are a little off the wall, perhaps unduly sharp.”

Mosk’s pragmatism--and his passion--have come out over the years as he wrestled with the explosive issue of the death penalty.

In 1979, after voters reinstated capital punishment, Mosk wrote: “The day will come when all mankind will deem killing to be immoral, whether committed by an individual or many individuals organized into a state.

Rap at Society

“Unfortunately, morality appears to be a waning rule of conduct today, almost an endangered species, in this uneasy and tortured society of ours, a society in which sadism and violence are highly visible and often accepted commodities, a society in which guns are freely available and energy is scarce, a society in which reason is suspect and emotion is king.”

He added: “I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon.”

But he has voted to uphold about 20 death sentences since capital punishment was reinstated--more than any current justice. It is the law, he says, so he must carry it out.

Mosk was state attorney general from 1958 through 1964, in charge of fending off appeals by Death Row inmates. One was Caryl Chessman, the Red Light bandit who kidnaped women from Los Angeles lovers’ lanes and raped them. Sentenced to death although he killed none of his victims, Chessman became a legal expert and a cause celebre for death penalty opponents worldwide.

Chessman Case

“I rarely lose sleep over a case,” Mosk said. But 26 years after Chessman was executed at San Quentin, the justice said, “There is a bit on my conscience.”

Once Mosk was appointed to the Supreme Court, he wrote an opinion narrowing the definition of kidnaping. Mosk reasoned that kidnaping could not be charged if it was merely incidental to the basic crime.

For Chessman, the ruling came too late. For Mosk, it is “a matter of some academic interest” that if the ruling had been in place in 1960, Chessman likely would be alive today.

Mosk’s main contribution to the law probably came in a series of rulings starting in the 1970s. To the dismay of prosecutors, the court, led by Mosk, began resting its rulings on the state Constitution. By doing so, liberal California justices could expand the rights of criminal defendants and evade review by the more conservative U.S. Supreme Court, which has limited authority over state court rulings on state law.

Innovative Ruling

In perhaps his most innovative ruling, Mosk opened the way for women to sue companies that made DES, a drug prescribed to pregnant women during the post-World War II baby boom. Years later, daughters of women who had taken the drug contracted cancer.

In the courts, the problem was that DES daughters did not know which company made the brand their mothers took. Mosk’s solution--the first such in the nation--was that manufacturers would have to pay based on the share of the DES market they held.

Mosk’s fascination with grammar, and posterity’s view of him, are illustrated by the “sic” story. The incident took place in 1978 after the U.S. Supreme Court reviewed Mosk’s most famous case--that of Allan Bakke, a white applicant to the UC Davis Medical School who was denied admission in favor of applicants who scored lower. The university had reserved 16 spots in the class for minorities.

Mosk ruled that racial quotas were unconstitutional and Bakke had to be admitted. The U.S. Supreme Court decided to admit Bakke and prohibit quotas, but ruled that universities could consider race as one factor in determining which applicants to accept.

Tripped Over Word

When the federal decision came out, Mosk was bothered by a single word, and set one of his staff attorneys to the task of getting it changed.

The question was whether the word data is plural or, as Mosk thought, singular. The U.S. court, quoting a passage from Mosk’s opinion, indicated that it thought the word was plural by placing a “sic” after Mosk’s usage.

After an intensive grammatical research project, experts concluded that the term can be used both ways. In the final version of the federal decision, the one printed in the official volumes that will be reviewed by generations of scholars, there is no “sic.”

At the time that Mosk’s Bakke decision came out in 1976, no issue was more emotional than reverse discrimination. Mosk, a Jew, had opposed quotas since his college days when some schools limited the number of Jewish students.

Still Against Quotas

That position since has become the minority one on the state court. But Mosk still maintains that quotas amount to “modern racism.” Their use implies that whites make up a super-race against which minorities cannot compete, he has written.

Pique echoing in his voice, Mosk said his opposition to quotas cost him “a lot of good liberal friends.” After his 1976 ruling, for example, the National Assn. for the Advancement of Colored People called for his ouster. On the other side, his stand won praise from conservatives, among them President Reagan. “Conservatives can be right too,” the justice said with a shrug.

For the most part, however, Mosk’s opinions anger those on the right.

“There is no way he can be sainted when Rose Bird is being humiliated in public,” said Christopher Heard of the conservative Criminal Justice Legal Foundation in Sacramento.

Critics Point to Case

One example cited by court critics came last June, when Mosk wrote a decision overturning the death sentence of Theodore Frank for the 1978 torture-murder of 2 1/2-year-old Amy Sue Seitz. The girl’s grandmother serves on the steering committee of Crime Victims for Court Reform, a group actively opposing the reelection of Bird, along with that of Justices Joseph Grodin and Cruz Reynoso in the November election--but not Mosk.

Earlier, Gov. George Deukmejian, urging business leaders to oppose Bird, issued a list of 31 cases to show that the court was “anti-business.” Mosk wrote nine of the so-called anti-business cases, more than any other justice.

One of his most passionately liberal stands involved the Victims’ Bill of Rights initiative, a 1982 measure sponsored by conservatives that brought sweeping changes to the criminal justice system. The measure took an especially heavy toll on Mosk’s opinions, undercutting his doctrine of using the state Constitution in criminal cases.

Biting Dissent

Vainly trying to convince the court to strike down the measure, Mosk wrote perhaps his most biting dissent, declaring: “. . . (The) Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.”

“I had an answer to that, but I took it out (before the opinion became public),” recalled retired Justice Frank K. Richardson, who wrote the 4-3 majority opinion. “Something like . . . ‘She’d get over it, and find other things to worry about.’ ”

Through it all, Mosk has maintained an active social life and an abiding interest in state politics.

Off the bench, Mosk is the court’s most active public speaker. To a law librarians’ convention in Anaheim, he spun yarns about the court of the 19th Century when one justice shot and killed a senator in a duel. To college students in Ireland, he lectured on international treaties.

Mosk’s first wife died after a long fight with cancer and, three years ago, the justice married a woman he met at his tennis club. Susan Mosk is 30 years younger than her husband, but says she only recently has been able to beat him at tennis.

On Governor’s Staff

The son of an Inglewood haberdasher, Mosk entered politics in 1939, becoming executive secretary to Gov. Culbert Olson. He was a few years out of law school, which he began at the University of Chicago and, because of money problems, finished at the less expensive Southwestern University in Los Angeles.

A New Deal liberal, Olson found himself stymied by stubborn legislators and was defeated after a single term by Earl Warren. Olson’s chief legacy was his appointment of several liberal justices who shaped the Supreme Court into one of the most progressive benches in the country.

Olson also rewarded Mosk in 1942 with his first judicial appointment, to the Los Angeles Superior Court.

In 1958, he was elected attorney general, one of many Democrats led into office by Edmund G. (Pat) Brown, who won the governorship that year.

Slap at Birchers

With a politician’s ear for catchy phrases, Mosk drew attention to himself. He shrugged off the John Birch Society as “little old ladies in tennis shoes.”

“I really saw those little old ladies in political meetings,” Mosk recalled. “They were the first to arrive and the last to leave and they were always making motions--and their feet hurt, so they wore tennis shoes.”

By 1964, Mosk and his close friends say, he had tired of politics. He had considered running for the U.S. Senate, but dropped out after Brown endorsed Alan Cranston.

Brown did offer Mosk a spot on the high court. And, in mentioning it, Brown noted that then-Chief Justice Phil Gibson was retiring. Mosk thought the implication was that he was in line to be the next chief justice.

As it turned out, the job went to Justice Roger Traynor, a scholar of national reputation who had been on the court for years. And, looking back now, Mosk considers his early years on the court the “halcyon days.”

He’s Rated High

Some justices assumed that, given Mosk’s political background, the cloistered life of a justice “really wasn’t his cup of tea,” former Justice Louis Burke recalled. “I had a feeling that somewhere along the line he was shunted out of active politics into the Supreme Court. . . . He was so hep on politics, so politically minded.”

Today, Burke, other justices and court staffers rate Mosk among the most able to have served on the court. They say he has a quick legal mind, aided by some of the best research lawyers at the court.

Like others--Mosk included--Burke reserved the term “great” for Traynor and one or two others, such as former Chief Justices Gibson and Donald Wright.

Mosk hesitates to compare today’s court with the court of old. However, without naming names, Mosk said there was a touch of “whimsy” in some of Gov. Edmund G. Brown Jr.’s court appointments--four of the current seven justices are Jerry Brown appointees.

Bird Chosen

In 1976, the position of chief justice opened again when Wright announced his retirement. Mosk’s friends lobbied on his behalf but, instead, Jerry Brown chose Bird, the first woman named to the court.

The court was soon torn by problems.

“It wouldn’t have been so bad if (the new chief justice) had been someone he knew and respected,” said Belton, Mosk’s staff attorney. “Instead, we had an outsider who was not even a member of the judiciary at any level. . . . So from the very beginning, if you were looking for a scenario that would cause trouble, this was it.”

Dissension within the court came on issues as trivial as the positioning of the table around which justices meet for weekly conferences and on more serious allegations, among them that controversial rulings were not immediately made public for political reasons. Evidence for such charges turned out to be scarce.

Fueling the Gossip

Through his actions, Mosk fueled gossip about internal turmoil. He switched his vote without explanation in a case that was the focus of allegations that the court withheld rulings. He refused to accept an award from a lawyers’ group that supported Bird’s reelection in 1978.

In the view of some, especially Bird supporters, Mosk was among the most scarred by the bickering. Mosk says it was the court that suffered. Today, most people involved say the disputes were overblown.

“I never saw tables being pounded,” retired Justice Richardson recalled. “There was heat, but I would see heat before and after. There was a common acceptance around the table that while I may disagree with your point of view--and maybe even deep down with you--that we have to work together.”

Belton said that in the years since, “things are certainly better.”

Improved Relationship

“On the whole, they get along better than they used to by a long shot,” he said.

Mosk would not discuss the early days of Bird’s tenure. But he did say the vituperative political opposition to her is based on emotion, not reason.

“I will vote for all my colleagues,” he said.

Mosk does note that although their voting record is similar, Bird and he differ. Unlike the chief justice, who has never voted to affirm a death sentence, Mosk has voted to uphold dozens of death judgments over more than two decades.

“I suspect I’m a little more of a pragmatist,” Mosk said. “I recognize the problems of society that need remedying. But I’m also enough of a realist to recognize what can be changed and what cannot.”

Mosk insisted that he has not definitely decided to seek a new term, and he does not have to make a decision until the summer. Defeat at the polls would be difficult to take, he conceded.

So far, he seems secure. A recent California Poll showed him ahead by a margin of 45% to 18%. His political adviser, Joe Cerrell, predicted that if Mosk does run, only the “lunatic fringe” will oppose him.