California Supreme Court Justice Leondra Kruger Explores the Intersection of State and Federal Courts during Law School Talk
Justice Leondra Kruger believes her judicial philosophy has remained mostly the same throughout her legal career, which has included clerking in federal court, working in private practice, serving as acting US Deputy Solicitor General and Deputy Assistant Attorney General for the Office of Legal Counsel, and serving as an associate justice on the California Supreme Court, the nation’s most extensive judicial system.
"I came to the law and my particular area of practice largely because I was interested in thinking about hard questions that arise in our society and doing work that I thought would be of service to the broader community," she said last month during a Q&A session with Lior Strahilevitz, the Sidley Austin Professor of Law, as part of the Law School’s Edward H. Levi Distinguished Visiting Jurist Program.
Although she is "definitely not picking favorites," Kruger acknowledged the practical differences between federal and state court practice, including the intense burden on state trial judges to process such a large caseload. Over 4.4 million cases are filed each year in California state courts.
Kruger said, "with the luxury of time to think about issues that come before us, I think about what I can do to translate legal decisions that we are rendering into a form that will be usable and workable for trial judges across the state [who are] operating in different circumstances [and] don’t have same resources and time as I do to consider these issues."
Adding to the demand on trial judges is California’s active state legislature and its numerous ballot initiatives. Kruger noted that a large portion of the Court's docket this year has reflected these constituent-led changes, including significant criminal justice reform statutes that have been unprecedented in the scope of relief offered and have raised numerous interpretive questions for courts.
While there has been increased focus on the historical background of constitutional amendments in the federal system, justices on the California Supreme Court often don't have any more legislative history to guide their interpretations than the arguments made to voters in their voter information guides.
With this limited information, the justices seek to interpret what the voter who marked the "yes bubble" on the ballot might have been thinking rather than focusing on those who drafted or funded the ballot measure.
"We are most concerned with what the people who are most directly responsible for enacting the statute thought about it," Kruger explained.
Kruger further emphasized the thread of California jurisprudence that "places pretty heavy weight on the scale" of upholding decisions made by voters of California when they decide to amend their Constitution.
These cases recognize "it would be extraordinary use of power in a decision to strike down [the voters’] work," she said.
Constituent lawmaking, and the legal questions that stem from it, is not the only unique aspect of the California Supreme Court. The Court has a surprisingly high rate of unanimity, upwards of 80 percent, in its decisions due to an unusual set of procedures that require justices to exchange feedback on draft opinions in writing and deliberate on the nuts and bolts of opinions before oral argument.
With such a heavy and early emphasis on asking questions, sharing concerns, and providing an established vehicle for requesting changes, there is a genuine effort to get all the judges to reach consensus.
"Culture makes a very significant difference in how we use this process and how we talk to each other," Kruger said. "We are a group of colleagues who care [a lot] about the value of collaboration and how much better we can do our jobs when we listen to each other, learn from each other, and do our best to take others' views into account."
Kruger said the California Supreme Court’s system of collaboration was initially quite foreign to her, especially coming from arguing in front of federal appellate courts. Over the course of her time in the Office of the Solicitor General, she argued a dozen cases in front of the United States Supreme Court, and she helped successfully defend the Affordable Care Act.
Kruger said lawyers often question the extent to which they can shift perceptions of a case and shift potential rules of the decision during oral arguments, especially in a system with heavy deliberative procedures. However, she believes the importance of delivering a compelling oral argument remains the same.
“Oral argument winds up shifting outcomes at about the same rate as in courts that don’t use [California’s] procedures,” she said. “No judge, regardless of which deliberative process comes before, goes in without a sense of what they will say in conference.”
Kruger learned the importance of thinking through a case while clerking for Judge David S. Tatel ’66 of the United States Court of Appeals for the DC Circuit and Justice John Paul Stevens of the United States Supreme Court. She cited these experiences as “formative moments” in her career.
She explained how Tatel—who also spoke at the Law School this fall as part of the Levi Visiting Jurist program—dove into each of his cases and paid careful attention to even the most minor details. She also praised how Stevens wrote his own first drafts to discipline his thinking and ensure he captured each issue.
Those early experiences with mentors have shaped her own approach to writing opinions.
"I don’t think I fully understand the case until I go through the exercise of setting my thoughts to paper,” she said.
Kruger’s views on the importance of collaboration resonated with listeners in attendance, including Ivy Truong, ‘24.
“In an adversarial profession, it’s easy to lose sight of the value of collaboration as a skill that needs to be consistently practiced and prioritized,” Truong said. “Learning about the collaborative tactics and mindsets that justices on the California Supreme Court embrace has been helpful in reflecting on the ways in which the legal profession can improve on bridging differences.”