The Right Coast

July 04, 2005
Stanley Mosk Remembered
By Gail Heriot

I’ve been working on a short essay this week about UC Regents v. Bakke, 438 U.S. 265 (1978), and that caused me to re-read Justice Stanley Mosk’s extremely eloquent opinion written for the California Supreme Court in that case. Read the whole thing if you get a chance; it is a strongly-worded opinion condemning the UC-Davis Medical School's race-based admissions policy as unconstitutional. Here is a taste:

"To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

The litigation went downhill from there. The U.S. Supreme Court, affirmed the California Supreme Court in part and reversed in part in a split (4-1-4) decision that continues to baffle those who have tried try to follow its logic. The three opinions issued in connection with that decision all lack the clarity of vision so palpable in the Mosk opinion. No matter what side of the issue you’re on, the opinions are a confusing mess.

Mosk was considered one of the most liberal judges on any state supreme court in the country at the time. And his credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles in protest over their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants.

Mosk surely knew that he would face a lot of angry people on account of his Bakke decision, but I wonder if he was prepared for the onslaught. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers. And when UC-Davis, no doubt in part as a conciliatory gesture, invited Mosk to give the commencement address at the law school in 1978, minority students wrote to him insisting that he decline the honor. When he accepted over their protests, one quarter of the graduating students walked out. But Mosk was undaunted. "Judges in California cannot be intimidated," he said. "Lawsuits are won and lost in courtrooms not on the streets."

Even in death, Mosk was not forgiven for this (and a few other) deviations from liberal orthodoxy. In his obituaries, four years ago, critics explained them away as Mosk’s efforts to bend with the political winds. In fact, Mosk showed backbone rarely found in judges. Whether one agrees or disagrees with his legal opinion in Bakke, it is difficult to deny that it was the product of his convictions.