California High Court Braces for Deportation-Related Turmoil

California’s Supreme Court is ready to intervene again if the federal government sends immigration enforcement agents to state courthouses.

The state judiciary is preparing to defend itself, Chief Justice Patricia Guerrero said, by reviewing “what has happened in the past,” which includes high-profile clashes between former Chief Justice Tani Cantil-Sakauye and President Donald Trump’s prior administration over access to justice for migrants.

“There are limitations in terms of what can be done, and we don’t seek to interfere in terms of federal enforcement, but there are also other things we can consider,” Guerrero said in a Jan. 16 conversation with reporters, adding, “a lot of this will be up to the individual courts.”

On Monday, Acting Department of Homeland Security Secretary Benjamine Huffman halted Biden-era rules preventing immigration arrests in “sensitive” areas like schools and hospitals. He hasn’t yet touched separate rules over courthouse arrests, which were allowed in cases with threats to public safety.

Cantil-Sakauye, in a 2017 letter to former US Attorney Jeff Sessions and former Homeland Security Secretary John F. Kelly, said that agents were “stalking” migrants at courthouses and using state courts as “bait” to enforce federal immigration law, threatening access to justice for victims, witnesses, litigants, and families.

As Trump vows mass deportations, migrant communities across the US are bracing for raids.

Trump shortly after taking office Jan. 20 suspended the asylum system and declared an end to birthright citizenship, prompting litigation from state attorneys general, including California’s Rob Bonta (D), and immigration groups.

The court’s plans to protect court access for undocumented people will be against the backdrop of a stack of cases that could reinforce individual liberties beyond the reach of the US Supreme Court, in areas like privacy, consumer protection, and criminal law.

UC Berkeley Law Dean Erwin Chemerinsky expects state top courts like California’s to provide more protection than the US Supreme Court in those areas.

“I think the key is that in areas where the [US] Supreme Court does not protect individual rights/equal protection, state courts can provide greater protection,” Chemerinsky said in an email. “In the areas where the Supreme Court says that there are rights (e.g., the Second Amendment) state courts are more limited.”

Quiet, Steady Leader

Guerrero, a daughter of Mexican immigrants whose first judicial post was in San Diego state court, is tasked as chief justice both with presiding over some of California’s most consequential cases and with ensuring uninterrupted access to the court system across the US’s most populous state.

Her court is “not trying to pick fights with anybody, not trying to get into debate or politicizing issues, but just doing what we always do,” she said. “That’s true regardless of who is in the administration. The work day in and day out doesn’t change.”

Guerrero is the first Latina to lead the state court. California’s government has never appointed more than one Latino to the court at a time, despite Latinos being the largest racial/ethnic group in the state.

She’s entering the third year of her 12-year term on a seven-justice court known for its ability to reach consensus, though Guerrero notes its rate of unanimous rulings has declined lately, from nine times out of 10 to eight out of 10.

She has a reputation among supporters of quiet, steady leadership.

“This is a justice that is apolitical, that has really done the work on the ground,” said Sonja Diaz, a civil rights attorney and co-founder of the Latina Futures 2050 Lab, who helped steer Guerrero’s selection.

Diaz said Guerrero’s legal resume and advocacy stem “from a deep and important personal background of humble beginnings in rural California, namely the Imperial Valley, and attending some of the most elite institutions in the world that are here in California.”

On the Docket

Several cases before Guerrero’s court could significantly bolster civil rights and other protections for residents in the next few years.

The California justices are currently weighing whether to take up a challenge to the state’s death penalty system that argues it is racially discriminatory.

If the court does anything other than reject the petition it will be a departure from federal high court precedent, which denied a similar argument in the 1980s, said David Ettinger, who is of counsel with Horvitz & Levy LLP and is the primary writer of the firm’s California top court blog.

Most state courts align their rulings with US Supreme Court precedent even when they aren’t locked into the rule of federal law, said David A. Carrillo, executive director of Berkeley Law’s California Constitution Center.

“The California Supreme Court generally looks to federal law for analogous constitutional provisions, but it is always free to (and it does) diverge from a federal interpretation when it finds good reasons for a different approach under California’s constitution,” Carrillo said in an email.

He added later, “the court’s role as the final arbiter of California law makes fidelity to federal and California constitutional law its lodestar, not partisan political considerations.”

The California top court is also poised to weigh in on whether a law preventing elder care workers from misgendering residents illegally restricts free speech, and whether patients can allege they were harmed by HIV medications because a company delayed developing safer ones.

It could additionally define rights for transgender people or rule on education issues guaranteed by the state constitution.

Decisions based on state law aren’t reviewable by the US Supreme Court unless there’s a contention that the state law runs afoul of federal law, said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.

“The result is there is an implicit potential battle between any Supreme Court and the US Supreme Court about what is state law—therefore strictly within the jurisdiction of the state Supreme Court—and what is not, and it will be interesting to see how that plays out,” Saenz said.