Retired justices reflect on the balance between personal beliefs and judicial duty

LOS ANGELES -- In 36 years on the bench, retired California Supreme Court Justice Martin J. Jenkins said he never encountered a case in which the law was so clear that a judge could apply it without exercising judgment.

"There was always some ambiguity," Jenkins said, explaining that interpreting the law requires considering legislative intent, fairness and the consequences of a ruling.

Retired 2nd District Court of Appeal Presiding Justice Arthur Gilbert offered a more pointed example of the distinction between personal beliefs and judicial obligations. Although he strongly opposed California's three-strikes law, he upheld most applications of it that came before him.

"I hated the three strikes law. I voted against it," Gilbert said.

The two jurists reflected on judicial philosophy, appellate consensus and their paths to the bench Wednesday at the California Supreme Court Historical Society's annual dinner at the California Club in Los Angeles.

California Supreme Court Justice Joshua P. Groban moderated the discussion.

Asked whether judges should consider fairness and societal consequences when interpreting the law, Jenkins replied, "I think they're fair game."

He recalled growing up in San Francisco during the civil rights movement and Vietnam War, witnessing antiwar demonstrations and changing attitudes toward Black identity. His parents, who came from the Jim Crow South, emphasized education and integration.

"That impacts the way I see legal issues," Jenkins said.

Gilbert acknowledged that his early fears about the three-strikes law had not entirely materialized. Although he anticipated excessive punishment, he found prosecutors in Santa Barbara and San Luis Obispo counties exercised more restraint than he expected.

"They were terrific," he said.

Gilbert also recalled serving by assignment on the California Supreme Court in a Proposition 5 gambling case in which two justices disagreed. He drafted an opinion that accommodated both positions and secured a unanimous decision, although the compromise produced a longer opinion than he would have preferred.

The experience, he said, illustrated the concessions sometimes necessary to achieve consensus on an appellate court.

The importance of consensus also figured prominently in a tribute to Jake Dear, the late California Supreme Court chief supervising attorney who served three chief justices over four decades.

Daniel Grunfeld of Judicate West introduced excerpts from an interview recorded eight days before Dear's death in June.

Calling his role an "intellectually luxurious position," Dear emphasized the responsibility to provide objective legal advice, even when loyalty to the law meant disagreeing with a justice.

"A unanimous opinion is much more difficult to come by than a fractured decision," Dear said in the recording, describing the deliberations and compromises behind appellate rulings.

Jenkins and Gilbert also reflected on their unconventional paths to the judiciary.

Jenkins initially considered teaching and briefly pursued a professional football career with the Seattle Seahawks before attending law school.

Gilbert dreamed of becoming a jazz pianist after hearing Art Tatum perform as a child. He eventually turned to law, and a friendship with Gov. Jerry Brown helped lead to his appointment to the bench.

Asked to identify his proudest accomplishment, Gilbert declined to single out any achievement.

"I'm not proud of anything. I'm thankful, and I'm appreciative that I found a profession that I love," he said.

Retired Contra Costa County Superior Court Judge Barry P. Goode, the society's president, opened the dinner by highlighting its work preserving California's judicial history through oral histories, publications and educational programs.