Four lawyers walk into a bar. What comes next is either a punch line, or a spirited
discussion. But the game on television is a blowout, and we're a bit bored. So one
of us poses a question: Who is the most influential California lawyer or jurist of
our age?
As a dizzying list of names unfolds, it's clear that some guidelines are needed. Quickly
we agree: The individual needs to be known primarily for his or her work in the legal
arena. This eliminates someone like Gov. Jerry Brown, who is most renowned for his
work in politics.
In true lawyerly fashion, we eventually come up with a serviceable two-prong test:
One, does the person define -for good or bad-a time in history, and he or she will
be remembered for doing so long after that influence has waned? And two, a Potter
Stewart-like "I know it when I see it" common-sense gut check.
Time is really the great ally in looking backward and appraising significance: It
distills the important from the trivial, the profound from the fad.
We Californians have been blessed with an extraordinary progression of legal giants
who defined their age and influence ours today. A few examples:
Earl Rogers was one of California's first celebrated lawyers and, probably, California's
first "celebrity" lawyer. He defended an impressive array of alleged criminals, both
unknown and famous, including Griffith J. Griffith, tried for attempting to murder
his wife, and Clarence Darrow, accused of attempting to bribe a juror. Rogers put
California on the national legal map.
Lorenzo Sawyer was a California Supreme Court justice and, later, a federal judge.
Sawyer decided some of the early Chinese-exclusion cases in California, laboring to
balance statutory intent with scientific evidence. Perhaps his most lasting decision,
though, was
Woodruff v. North Bloomfield Gravel Mining Co., which effectively outlawed hydraulic mining and marked California's transition from
a mining state to an agricultural one.
Roger Traynor was the chief justice of the California Supreme Court at the apex of
its nationwide influence. His opinions ranged from
Perez v. Sharp, in which the court became the first in the nation to strike down anti-miscegenation
laws, to
Greenman v. Yuba Power Products, Inc., which created modern products-liability law.
Earl Warren is, without question, one of the most important lawyers and judges in
the history of our country. As California's attorney general he was a moving force
behind the World War II internment of Japanese-Americans, an action he later said
he "deeply regretted." After serving as the state's 30th governor, he became the chief
justice of the U.S. Supreme Court. The "Warren Court," through its decisions in
Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and
Reynolds v. Sims, among many others, transformed the nation.
And then there's Warren Christopher, who defined California legal power and prowess
for nearly 40 years, first as the leader of O'Melveny & Myers, then as U.S. secretary
of state under Bill Clinton. Johnnie Cochran Jr., in turn, defined the "all in" high-profile
criminal defense celebrity practitioner who significantly influenced not only the
law, but also popular culture.
So who is today's heir to these giants? Our enlivened group suggests a string of candidates,
including Larry Sonsini and Morgan Chu for intellectual property law; Kathleen Sullivan
and Erwin Chemerinsky for legal education and the practice of law; Tom Girardi, Elizabeth
Cabraser, and Joseph Cotchett for plaintiffs work; Connie Rice for civil rights and
her profound influence on modern policing practices; Bob Dell and Ronald Olson for
guiding juggernaut law firms in the age of "big law"; former California Supreme Court
Chief Justice Ronald George for his indelible stamp both on the court's decisions
and the changes he brought to the management of California's judicial system; and
Judy Clarke for her long string of successes in death penalty defense.
All are credible choices. But for my money, the Californian who defines our legal
age is U.S. Supreme Court Justice Anthony Kennedy. His California credentials are
impeccable: Born and raised in Sacramento, he served as a page in the California state
Senate, attended Stanford as an undergraduate, practiced law in San Francisco and
Sacramento, and taught at McGeorge School of Law. Before his appointment to the high
court in 1988, he served on the Ninth Circuit.
There is no doubting his influence. Although he reportedly dislikes the description,
Justice Kennedy embodies the term swing vote in modern Supreme Court history-along
with former Justice Sandra Day O'Connor. Casting the deciding vote in a long string
of 5-4 Supreme Court decisions, Kennedy is disproportionately responsible for the
state of constitutional law in the past two decades. His decisions and votes have
led to a Court that generally favors prosecutors over the accused, strongly supports
the death penalty and gun rights, shows significant deference to the executive branch,
is less stringent in the separation of state and religion, supports a broad view of
constitutional protection for speech under the First Amendment, and has increased
protections against discrimination over sexual orientation.
It may appear that one of the ironies of Justice Kennedy's jurisprudence is that,
although a consummate Californian, he no longer represents the political and judicial
temperament of his beloved state. Kennedy's opinions were formed in the days when
California, politically and judicially, was emerging as a state "hard on crime, but
tolerant on social issues." The state also produced political giants of national prominence
from both parties: Governors Pat and Jerry Brown as Democrats, and Richard Nixon and
Ronald Reagan as Republicans. Today, the state is more diverse and progressive-and
solidly in the Democratic column.
But, in fact, Justice Kennedy's jurisprudence remains profoundly Californian: It is,
by the standards of our times, generally not ideological or rigid, relatively careful,
and open to international influences. He parses, as only a U.S. Supreme Court justice
can, the weight of the past with the immediacy of the present. How very Californian.
Not that I agree with all of his decisions, but I am hard pressed to identify any
other Californian who has so defined the nation's legal landscape in recent times.
Daniel Grunfeld, a partner at Morgan, Lewis & Bockius in Los Angeles, heads its West
Coast litigation practice.
Donna Mallard
Daily Journal Staff Writer
