Cabraser, Cojones and the California Supremes

Nationally known plaintiff lawyer Elizabeth Cabraser appeared to use a bully pulpit today to nudge the California Supreme Court to take a historic stand on gay rights.

With all seven justices on the dais with her during the Lawyers’ Club of San Francisco’s annual California Supreme Court luncheon, Cabraser dared to bring up the same-sex marriage cases currently pending before the state’s highest court.

The Lieff Cabraser Heimann & Bernstein partner’s comments came as part of a broader keynote speech at the Fairmont Hotel on “Loving the Law When the Law Won’t Love You Back.” And her comments about In re Marriage Cases, S147999, came toward the end when she said California lawyers should have been proud of how the justices showed extraordinary patience, respect and erudition in the way they treated all parties during the March 4 oral arguments.

She said it “demonstrated to our state, nation and world that our most important conflicts” can be handled civilly and in the pursuit of “evolving ideas of justice and equality.”

While Cabraser toed a fine line, she earlier had pointedly talked about bad civil rights decisions by the U.S. Supreme Court and good ones. The bad included Plessy v. Ferguson, 163 U.S. 537, the 1896 decision that upheld the constitutionality of racial segregation, and Korematsu v. U.S., 323 U.S. 214, the 1944 ruling which upheld a Japanese-American man’s conviction for refusing to report to an internment camp during World War II.

The good included Brown v. Board of Education, 347 U.S. 483, the 1954 ruling that repudiated Plessy and other racial segregation decisions by declaring “separate but equal” schools unconstitutional.

Cabraser told the crowd that the law is always “dragging us forward against our preferences, against our wills and probably before we’re ready.” She also said the law sometimes “moves too slowly to reflect the wisdom of the age.”

Hinting at the justices’ legacies, she said, lawyers and judges of today will be defined by “what others in the future will judge to have been just.”

Immediately after making those comments, Cabraser brought up the same-sex marriages cases.

It is doubtful that Cabraser’s speech changed any of the justices’ minds, because the decision has probably already been made, what with the court having only until June 2 to release the ruling.

But it took a lot of brass to do what Cabraser did.

—  Mike McKee