A Conversation with Washington Supreme Court Chief Justice Steven C. González

On June 4, 2020, 10 days after the murder of George Floyd, the Washington Supreme Court issued an extraordinary letter. “Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed,” the justices wrote. “As judges, we must recognize the role we have played in devaluing black lives.”

The letter explicitly committed the state’s courts to the hard work of listening, reflecting, and reforming. It was an example of state courts standing apart from the federal system, taking their own road toward substantial justice.

I recently spoke with the current chief justice of Washington State’s highest court, Steven C. González, about the letter and the role the Washington Supreme Court plays in protecting rights. We also talked about originalism, the importance of having diverse life experiences represented in the judiciary, and González’s own path to the bench.

Here is our conversation, edited for clarity and space. You can also watch the complete interview here, as well as a companion interview in Spanish here.

Alicia Bannon: When most people think about constitutions, they think about our federal Constitution. I would love to hear what you see as the role of the Washington Supreme Court and the Washington State Constitution in protecting rights.

Chief Justice Steven C. González: In law school, we were mostly taught about the federal system and less so about the state system. Of course, the lens is completely different. In a review of a federal court action by the government, the question is, what gives them the authority to do something? And if there isn’t explicit authority to do it, it can’t be done.

In states, it’s the opposite. States can do anything unless they’re prohibited from doing so. The job of the state supreme court is to question whether authority has been exercised under law. That is, if the government has done something, were they allowed to do it and did they do it right?

The constitution in our state is more protective, in some respects, than the federal Constitution. [In the context of search and seizure], for example, Article 1, Section 7 [of the Washington State Constitution] provides more protection than the [Fourth Amendment of the] federal Constitution does. The state judiciary has an important role as a coequal branch of government here at the state level in protecting those rights enshrined in our state constitution.

Bannon: You mentioned how [search and seizure] under Washington’s constitution is different than the federal Constitution. What are some of the considerations as a judge when you are taking a different approach to constitutional interpretation than the federal courts have taken to similar provisions under the federal Constitution?

González: First, we have to do a comparative analysis of the text itself. Our constitution was not passed at the same time as the federal Constitution, so there’s a different historical and political backdrop. We are informed by what the federal interpretations have been of similar language, but not controlled by it. We have to look at our own state’s unique position.

[Regarding illegal search and seizure], the language is different here. The government shall not interfere with one’s “private affairs.” There is an explicit privacy right in Washington, and it has led to results that differ from federal law, for example in the driving-under-the-influence context. Under federal law, you can have a general roadblock where you stop everyone and check whether they’re under the influence. Under Washington law, there has to be a particularized suspicion of the individual before you can interfere with their private affairs.

Bannon: Chief Justice John Roberts of the U.S. Supreme Court famously compared judging to calling balls and strikes. Can you give us your personal version of balls and strikes: a metaphor, a phrase, or a case that distills how you think about judging?

González: I’ve never been a big fan of sports metaphors. It leaves some folks out. But if we’re going to work with that metaphor, I think it’s incomplete, because we are not just calling balls and strikes — we’re actually defining what the strike zone is, in some instances. And that’s different than this idea that it’s a mathematical formula that we’re applying.

Thomas Jefferson didn’t get everything right, but I think he got this one right. He said, “I’m not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand-in-hand with the progress of the human mind. And as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times." He concluded by saying, “We might as well require somebody to wear still the coat which fitted them as a child as civilized society to remain ever under the regimen of our barbarous ancestors.”

What I think Thomas Jefferson was saying is that those things that we do today that might seem reasonable, in the future will seem barbarous. Indeed, the denial of humanhood to many people in our nation, the denial of suffrage and other rights to women, et cetera — those things were barbarous in retrospect. The purpose of our work is to decide what the principles were and to give effect to those — to the soaring rhetoric that we’re all entitled to liberty and the pursuit of happiness. What does that mean today, and how do we interpret it? There must be some elasticity in those words.

Bannon: Speaking of our constitutional framers, they’ve taken on an outsized role in the U.S. Supreme Court’s approach to constitutional interpretation of late. I would love to hear your reflections on the Supreme Court’s embrace of originalism as an approach to constitutional interpretation and how you think about originalism with respect to your own judicial philosophy.

González: I don’t think that originalism is elastic enough. I don’t think it’s flexible enough. It can do violence to require someone to imagine themselves to be a slave owner who didn’t believe women had equal rights in order to understand what the Constitution means. I don’t think that’s what the framers intended.

I also don’t believe that we’re untethered from those words. The words and their interpretation matter. How they’ve been interpreted in the past matter a great deal. I just think that we need to be careful when we’re trying to find that intent. 

It’s like the work that we do to determine legislative intent when we’re interpreting a statute. We try to imagine what the legislature meant, but that’s hundreds of people who didn’t agree with each other. Legislative intent is a bit of a construct, a myth. The idea is, what do the people need from these words? What was the policy and intent of it? Looking at the big picture and understanding what rights are being protected and why is critical in that analysis. It isn’t simply, “what would the Founding Father have done in this instance?”

Bannon: I want to shift gears and turn to a statement that the Washington Supreme Court issued back in June 2020 that I thought was really remarkable. The court said, “As judges, we must recognize the role we have played in devaluing Black lives. And it is only by carefully reflecting on our actions, taking individual responsibility for them, and constantly striving for better that we can address the shameful legacy we inherit.”

Looking back more than two years later, to what extent do you think the court has taken up that call to action, and what work remains to be done?

González: When the idea was floated [by Chief Justice Debra L. Stevens and Justice Mary Yu], I was skeptical that as a court we could say something meaningful and actually live up to it. I was really pleased that, in fact, we came up with strong language and we’ve been striving to live up to those ideals.

We extended [the Batson v. Kentucky] rule to make clearer that you can’t remove people of color [from a jury] without scrutiny from the court. It was the first [case] in the nation that said, if an objective observer — defined as somebody who’s aware of the history of racism and implicit bias — could conclude that race was a factor in the removal of that juror, that juror may not be removed. That is a sea change in the way we address implicit bias and bias in our system. Because if you’re biased intentionally or unintentionally, the result is the same on the person who’s being discriminated against.

We amended our Rule of Professional Conduct 8.4 to prohibit discrimination on the basis of gender identity and gender expression. We have done a global review of all our rules and removed biased, gendered, and noninclusive language in those rules, many of which were passed years ago.

We amended a comment to our Rules of Professional Conduct 4.4 to make it clear that it’s a violation of those rules to use someone’s immigration status as leverage against them in a case.

We have repudiated biased language in prior opinions. Even if the rule of law might be right, we disavowed the language that was used to get there.

In State v. Blake, we found that the simple drug possession statute in our state was unconstitutional because it had no mens rea element. [That] undid hundreds, if not thousands, of convictions for simple possession of drugs, which had a disproportionate effect on people of color and those living in poverty.

In State v. Zamora, we reversed a case in which the prosecutor repeatedly appealed to anti-immigrant bias with a Latino defendant who was not himself even an immigrant.

We posthumously vacated a conviction against Alec Towessnute for fishing on traditional tribal waters — an opinion that had abusive and racist language about Native Americans that we needed to repudiate.

There’s much that we’re doing, and we take seriously our commitment to live up to the rhetoric in that letter.

Bannon: What has been most challenging with respect to living up to that rhetoric? Is there an area you would point to where more work needs to be done?

González: There’s a substantial amount of work that still needs to be done. As a profession, we’re taught to be backward-looking. Resisting our natural temptation to say, “Oh, we can’t do that. That’s outside of our realm,” I think is hard work.

When I was a trial court judge, a couple of my colleagues and I proposed a rule to prohibit ICE from arresting people in or around our courthouses, because we wanted everyone to feel liberty to come to court and adjudicate their disputes peacefully without the specter of federal enforcement. Some of my colleagues on the trial bench said, “Well, we can’t do that. That’s a political question.” But just because immigration status has been politicized, it doesn’t mean access to justice is political. Eventually, we did pass it, and Homeland Security agreed to honor that policy [until the Trump administration].

It’s important for courts to be courageous on issues like that and say, “Our job is to provide a forum for people to resolve their disputes. Therefore, it’s problematic for us to be enmeshed with and involved in immigration enforcement, because it will mean witnesses won’t come, victims won’t come, parents won’t come to support their kids in juvenile court.” That is an access to justice issue well within our wheelhouse. Thinking through those kinds of issues takes bravery, courage, dedication, and a great deal of patience.

Bannon: Can you tell us why you became a state supreme court justice and a little bit about the path that you took to the bench?

González: I’m the first in my family to go to college, let alone law school. This is not where I expected to be when I was a kid. It is not where my counselors expected me to be. But I went to college because I wanted to have more options and chances. Once I got there, I loved education for its own sake. I became an East Asian studies major. I lived in China and Japan, went back as a graduate student to Japan, and then eventually law school.

I practiced in private practice, was recruited away to litigation and criminal cases. I did domestic violence work, and then I worked for the U.S. Attorney’s Office, where I prosecuted hate crimes and child prostitution and international terrorism cases.

I was recruited to put my name in for the bench. I had been encouraging others to pursue such a career — it would have been hypocritical to urge others to take leadership but not do it myself. I sought an appointment from the governor and got one 21 years ago in superior court and saw the difference that one can make on the bench and as a role model, because there were too few role models of color.

I really wanted to change the image of what a judge looks like and give kids of color hope that they have a role model to aspire to. And to have the majority culture also change their view of what a judge looks like.

It’s more than just appearance — it is substance. The studies show that a heterogeneous body is better than a homogeneous one. Many show that a mixed jury is better on every objective measure than a homogeneous jury is, except maybe on the measure of efficiency.

That sacrifice in efficiency is well worth it because we found that mixed juries were more likely to talk. They were more likely to actually read and follow the instructions from the court. They were more likely to examine carefully the exhibits that were given to them. I think that’s true for us, too, as a court of last review. There are nine of us, and that diversity helps us be better decision-makers.

After serving 10 years as a trial court judge, I was encouraged to apply for the [Washington] Supreme Court. I did some soul-searching and decided that I couldn’t not do it. You may be rejected, but let them reject you. Don’t do it for them.

Bannon: How have your own life experiences and professional experiences impacted your work as a judge and your deliberations with colleagues? And maybe on the other side, how have some of your colleagues’ experiences impacted how you’ve thought about the law?

González: On the campaign trail when I was first running, one of the questions I was asked more than once was, “Do you think you can be fair and impartial if the litigant before you is also Latino?” And that says a whole lot about both me and the person asking the question, because people from the majority were not asked a similar question. They weren’t asked, “If a white person is in front of you, can you be fair?”

That’s because we often make this mistake of thinking the norm is the neutral. I’m not the norm, and so the assumption is I’m not neutral and I’ll be biased in favor of my own demographic. Well, first of all, my own demographic is a bit more complicated than just Latino. Assumptions are built into the very question itself. And second, the idea that this question is appropriate for me and not for the majority culture just points out how we view neutrality.

It’s partly the work that we’ve done on redefining what an objective observer is. We’re saying that objective observer includes all of our experiences, not just the majority experience. It’s important to have people making decisions who have a variety of experiences, who may have lived in poverty themselves, who may have experienced life as a person of color or as a gay person and understand what that is like as well.

I’ve also found that it’s not just a different voice in the room, but the majority voice changes when I’m in the room as well. It changes the very nature of the discussion. I’m a big fan of that inclusiveness, and I think it makes us better overall.

I have talked about my own experiences growing up. I’ve been a prosecutor, so I’ve worked closely with law enforcement, but I’ve also had negative interactions with them as a young man of color being stopped for reasons that I thought were inappropriate. That’s an important perspective to have on the bench. We shouldn’t assume that every single time a stop happened that it was legitimate. We should also understand that many of them are, and I think that perspective matters.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.