Justice Joyce Kennard of the California Supreme Court..Photo By Hillary Jones-Mixon.8/08/2011.055-2011 (Hillary Jones-Mixon)
SAN FRANCISCO — Joyce Kennard will retire from the California Supreme Court on April 5, 25 years to the day she began making the improbable seem ordinary.
Kennard was only the second woman to join California’s highest court and its first of Asian descent. Today the court boasts a majority of both, including a chief justice who shares each characteristic.
“Any success I achieved could have happened only in America, a land that encourages impossible dreams,” Kennard wrote in her letter of resignation to Gov. Jerry Brown.
In an interview Tuesday, Kennard, who was raised in an Indonesian internment camp and then the jungles of New Guinea, added, “All that I wanted more than anything else was an education, which I didn’t have.”
Now the longest-serving member of the court, Kennard has educated many a lawyer who’s appeared before her. She quickly developed and maintained a reputation as one of the closest questioners on the court, seldom letting a case go by without several disquisitive inquiries.
Kennard also was known for going her own way. Asked about her legacy Tuesday, she spoke with pride about dissents that prompted legislative action or were later adopted by federal courts. But she also was an essential piece of one of the court’s most famous majorities, the 2008 Marriage Cases decision that gave same-sex couples the right to marry in California, kicking off a wave of similar actions around the country.
Kennard told The Recorder in 2008 that after the decision came down she was touched by letters from people who’d been waiting for the opportunity to marry. But, she predicted then, “With time, people will say, ‘What’s the big deal?’ It’s the same thing today with interracial marriages.”
The 72-year-old justice said she began thinking about retiring after losing some friends to illness over the last few years. She thought “there but for the grace of God go I,” and decided “perhaps it’s time to say goodbye to a terrific court,” staff and colleagues, and spend more time with “long-neglected friends.”
She added that two longtime attorneys on her staff, Pamela Victorine and John Murphy, have just recently decided to step down as well. “It’s hard to replace people I’ve worked with so long and for whom I’ve developed so much respect,” she said.
Kennard’s departure will hand Brown his second opportunity during this administration—and ninth over three terms—to add a justice to the high court. Brown is famously hard to predict on such matters. His 2011 pick of Justice Goodwin Liu was largely unanticipated. Latino groups were disappointed that Brown left the court without an Hispanic justice, and no African-American has served on the court for the last nine years.
The Sacramento Bee reported in 2011 that Brown had considered several Latinos for the seat that ultimately went to Liu, including UCLA Law School Dean Rachel Moran, UC Davis Law School Dean Kevin R. Johnson, and Christopher Cameron, a Southwestern Law School professor. Moran had just accepted the UCLA deanship less than a year earlier.
Nor has the court ever seated an openly gay jurist, though Brown’s first and only appointee to the First District Court of Appeal, James Humes, fit that bill, and Brown has recently vetted him for a presiding justice role on the court.
Kennard served in the attorney general’s office and as a research attorney at the Second District Court of Appeal before her appointment to Los Angeles municipal court in 1986. Within three years Gov. George Deukmejian had elevated her to superior court, the Second District Court of Appeal and then the Supreme Court.
During her early years, Kennard often found herself to the left of a majority led by Chief Justice Malcolm Lucas. She was a particularly frequent dissenter in death penalty cases, occasionally finding vindication at the Ninth Circuit.
Kennard also wrote notable majority decisions recognizing a right of action for age discrimination, holding a city vicariously liable for a rape committed by an off-duty policeman, and ruling that Nike’s advertising about its labor practices is commercial speech subject to regulation.
Justice Kathryn Mickle Werdegar described Kennard as hard-working, conscientious and deserving of some quality time with friends. “She will be greatly missed,” she said.
Kennard said she might do some traveling in retirement. But there’s one thing she knows she won’t do. “It’s pretty safe to say I will not be a rent-a-judge,” she said.
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