Rule of Law - Yes, We Really Do Mean It!
By PTurner, Section News
Perhaps the current Rule of Law majority on the Michigan Supreme Court should have this saying etched into the side of the Hall of Justice in Lansing.
The GOP convention was this past weekend, and as several news agencies have reported, the anger with the GOP-majority Justices of the Michigan Supreme Court was palpable. In a particularly detailed account, MIRS (subscription required) reported that the Justices "faced a frosty reception," although that characterization may be a bit of an understatement. MIRS went on to report that if there had been more time before the convention, it is likely that Justices Markman and Zahra would have faced challenges to their seats, and that "some donors have asked for their money back from the Supreme Court race." Former MRP executive director Greg McNeilly stated that he believes the Justices "made a political decision," and when asked what resources would be left for the GOP's Supreme Court candidates, McNeilly is quoted as responding "F--k them." And this is just what was said publicly; "Most Republican powerbrokers didn't want to air their frustration publicly, but heated words privately, however, have been exchanged."
I have closely followed Michigan Supreme Court races since 2000, which just so happened to be the first election after which judicial conservatives regained a majority on the Michigan Supreme Court. In that and every subsequent election to the present, the Justices who have comprised at one time or another that majority--whether it was Justices Taylor, Young, Markman, Corrigan, Mary Beth Kelly, or Zahra--have uniformly promised us the same thing: that they are committed to the Rule of Law. That they will not decide cases based on politics or who the parties are that come before the Court. That they will be bound in their judicial decision-making by the text of the Constitution, statute, contract, or whatever document is being interpreted in a given case. And that they will eschew creative judicial thinking that activist judges employ to avoid interpretations and conclusions with which they disagree. This philosophy is borne out of a fidelity to our constitutional system, particularly the separation of powers that vests the power with the people and their political branches to make policy decisions and allows the judiciary only to sit as neutral arbiter.
And throughout the years, those Justices have delivered on that promise in case after case, casting difficult and sometimes unpopular votes because that is what the law requires. I was at a fundraiser for Justice Young in 2010 in which many major donors and party brass were also present, and I recall him thanking those present for their support and telling them (and I paraphrase here): "it is hard for Rule of Law judges to raise money because we can only promise you what we promise everyone else: that if a case in which you are involved gets to our Court, we will decide it as the law requires--no more, no less." And yet now we have a decision where the Justices have cast their votes as the law required, and they are getting excoriated for it by the very people who nodded in agreement over the years when they promised to do "no more, no less." For them, "rule of law" is not a slogan, but a guiding judicial philosophy. Here's an arresting concept: maybe there are politicians out there who mean what they say and will not betray their (and all of our) governing principles when it becomes politically convenient to do so.
Among the critics of the Court's decision, I challenge one of them to expose a critical legal flaw in the Court's reasoning. I doubt they can. In fact, I doubt many of these critics have even read the Court's decision. I attended the oral argument for this case and heard some of Michigan's best election law attorneys, as well as Michigan's undeniably bright and effective Solicitor General make the best arguments that he and his colleagues could conceive against the proposal, and they simply did not have the winning legal argument in the collective bargaining case. There is certainly a compelling narrative that the collective bargaining proposal is deceptive, represents bad policy, and will have far-reaching consequences, but the question that faced the Court was whether its supporters meet the black-and-white legal requirements to have this placed on the ballot. The answer was, and remains, yes. Having a personal disagreement with a particular legal outcome does not mean it is wrongly decided.
In regards to the extraordinary reaction from some conservative quarters, I am not sure what I am more disappointed by: (1) that many conservatives expected the Court to reject what the Justices clearly believed was a law-compelled conclusion that the union initiative should be on the ballot in favor of a politically-driven outcome, and this after years (and in some cases, more than a decade) of these Justices professing their adherence to the Rule of Law. Or (2) that many conservatives are apparently willing to sacrifice the Court because of this one decision, i.e. the "F--k them" theory that the current Justices are no better than the Democrats.
To individuals in the first group, I would ask them what would remain of the Right's justifiable criticism of liberal judicial activists these last several decades if we, ourselves, expect judges with whom we may identify politically to make political decisions not based in law when it suits our needs? Such activism, perfected by the Left over the years, has produced some of the worst judicial decisions of all time, frustrating the people's right of self-government. Are conservatives now no better when it suits our cause? Is "Rule of Law" little more than a hollow slogan? Perhaps the media are somewhat to blame for this reaction: after all, the media so often discuss court decisions in political terms and frame judges as political actors that it may be shocking for some people to realize that there are judges who honestly conduct themselves neutrally in accord with the law--and that such conduct is desirable in a Court that promises justice under law. But on the other hand, a lazy media is no excuse--we should know better.
Perhaps the individuals in the second group have forgotten the (thankfully short) dark years of 2009-2011 on the Michigan Supreme Court when Marilyn Kelly was at the helm of a liberal activist majority, busy "undo[ing] the damage done by the Republican court." Folks, you would do well to remember that their tenure was a gift from God to the trial lawyers; they overruled judicially conservative precedents and interpretations as quickly as they could. Thus, while you may be able to defeat the collective bargaining proposal (and lets hope so), consider this: if you do not have a Court that is willing to follow the law and rule against powerful interests like unions, what will you have won? Yes, we may save the Emergency Financial Manager law, but consider this: the Court has not passed on the constitutionality of that law, and already-existing lawsuits challenging the constitutionality of it will likely be decided in the near future. When the issue is not one of font size but rather constitutional interpretation, who do you want making that decision? If you think there is no difference between Rule of Law and non-ROL judges, then you are delusional. Moreover, Republicans may retain the Legislature in 2012, but that will not mean much if an activist Court strikes down reforms that the Legislature puts in place. Consider that if the Dems had controlled the Court this past term, the Governor's pension tax reform would have already been struck down as unconstitutional. And this is to say nothing of the innumerable cases that will come (and that have come over the years) where the Rule of Law majority will enforce the people's choices, while critics jeer from the sidelines for the Court to look beyond the letter of the law.
So for those who are upset, I respectfully submit the following: You may not like the decision, and that is fine. There will be times when we disagree with a decision of the Court but nonetheless recognize that is was the legally right one when we step back from the heat of the moment. But it is time to get serious. We will have to beat the collective bargaining proposal and the other proposals at the ballot box, which is, in fact, precisely what our constitution and democratic system envisions. And we will have to keep a Rule of Law majority on the Supreme Court because, if we fail to do so, the political victories will be hollow if the other side can merely undue them in the Courts.
Rule of Law - Yes, We Really Do Mean It! | 26 comments (26 topical, 0 hidden)
Rule of Law - Yes, We Really Do Mean It! | 26 comments (26 topical, 0 hidden)
Related Links+ subscripti on required
+ the Court's decision
+ undo[ing] the damage done by the Republican court.
+ already-ex isting lawsuits
+ would have already been struck down as unconstitutional
+ critics jeer from the sidelines
+ precisely what our constitution and democratic system envisions
+ Also by PTurner