Channeling the Queen of Hearts, the California Supreme Court drafts and votes on its merits opinions before the case under review is orally argued. The court can, and does, alter those opinions in light of the argument, often sprinkling in citations to oral argument before publishing the decision. Nevertheless, given that a majority has already signed onto a written opinion, oral argument in that court is a theater of the absurd in which one of the appellate litigants (only the justices know which) is in effect arguing for rehearing in an appeal already decided against his client without knowing the result or the reasoning of the decision he is challenging. Petitioning for rehearing from an en banc decision of a court of last instance always carries exceedingly long odds; those odds become vanishingly small if the losing litigant does not know he has lost, or what the premises and reasoning of the adverse decision are. Moreover, the justices have a powerful personal financial incentive not to reconsider the merits following oral argument. The justices’ pay is suspended under California’s “ninety-day rule” if the court fails to issue a final decision within ninety days of “submission.” Since 1989, “submission” has been defined as the conclusion of oral argument.
Still, the court persists in holding faux oral argument in almost all cases decided on the merits, at substantial cost to the state and the litigants. Except in rare circumstances, however, the court bases its decisions solely on the written submissions of the parties, the record made below, and whatever internal research and debate it chooses to undertake.
Nevertheless, oral argument remains an indispensible part of the court’s procedure in merits cases, not only because the California Constitution apparently requires it,10 but because it enables the court to maintain the fiction that it resolves all matters “submitted” to it within ninety days. In truth, the court virtually never resolves a merits matter within ninety days or anything close to it; for opinions issued between 2001–2011, the median duration from the grant of review to the filing of the court’s opinion resolving the case ranged from 441 to 618 days, exclusive of automatic death penalty appeals that generally take significantly longer. By deferring oral argument until the written opinions are finished and agreed to, the court prevents the ninety-day clock from running until the court has already decided the case, subject only to minor tweaking of the written opinions. Formal compliance with the ninety-day rule in every single “submitted” case is crucial because if any case languishes for more than ninety days from “submission” the State will withhold all the justices’ pay.
Only California adopts this appellate procedure. It was foisted on the court in a private settlement of a suit by a disgruntled litigant at a time when the court’s public standing was at its nadir, three justices having recently been unseated in a bitter statewide election. The thesis of this Article is that the California Supreme Court’s appellate process is not due process of law within the American tradition, is not good practice, and cannot withstand serious scrutiny from the public.61-5-1