California & gay marriage

Update at the other blog, although the post makes essentially the same point.

Professor Volokh writes, regarding a state trial court's ruling that California's definition of marriage is unconstitutional:

I expect there'll be an appeal to the California Court of Appeal, and the issue will eventually be decided by the California Supreme Court. Given my sense of the California Supreme Court's moderately conservative (generally speaking) jurisprudential philosophy, I think the court is likely to hold that the opposite-sex-only requirement is indeed constitutional.

There's an interesting omission here, particularly since there's been a judicial term limits debate percolating a volokh.com.

Why is it that, in one of the bluest states in the country, the California Supreme Court has a "moderately conservative ... jurisprudential philosophy"? The answer can be summed up in a four-word Google combo: "Retention election" & "Rose Bird".

You see, California's high court wasn't always moderately conservative. Once upon a time, it was immoderately activist. In Chief Justice Rose Bird's 10 years on the bench, she voted to set aside 63 consecutive death sentences. Associate Justices Cruz Reynoso and James Grodin voted with her most of the time.

But California's judges don't have a lifetime claim to unfettered power. They have to face the voters every 10 years in an unopposed retention election. And in 1986, California voters tossed these three Supreme Court justices from office.

Presto chango, California's judiciary turned from liberal to conservative. Its current disposition is no accident. And it speaks volumes of practical experience to those who would shield the judiciary from political pressure at all costs.

Other comments on the court's ruling:
Wizbang
Ace
Outside the Beltway
Civil Commotion
Jawa Report
Steven Taylor
Jayson at Polipundit
Stones Cry Out