Columns

Colleen A. Pero

Same Tired Political Attacks on High Court

March 4, 2011

Having spent much time examining the “conservative” era of the Michigan Supreme Court, I was eager to read Judge Glazer’s recent column, “Scholars Explore Michigan Supreme Court Upheaval.” I wondered whether I had missed a recent law review article on the subject. Unfortunately, the column turned out to be simply an accumulation of the same tired political attacks that have been leveled against the conservatives on the Michigan Supreme Court by the liberal left for the past 10 years.

Judge Glazer suggested that the Court, while controlled by the conservative justices (1999-2008): 1) was political in its deliberations (citing Dome columns by Jack Lessenberry); 2) was poorly rated (citing a flawed “University of Chicago Law School” study covering 1999-2001 — but the study wasn’t conducted by the University of Chicago Law School, nor was it published in the University of Chicago Law Review. Rather, it was written by three law professors, including one from the University of Chicago Law School, and was finally published in the Duke Law Journal in 2009); and 3) had abandoned the important legal doctrine of stare decisis or precedent (citing articles by Professor Robert Sedler of Wayne State and University of Albany law student Sarah Delaney).

To establish the controversies on the Court while controlled by conservatives, political and otherwise, Judge Glazer referred readers to three Jack Lessenberry columns. Relying upon a Michigan Public Radio reporter and syndicated columnist (not even a member of the Michigan Bar, much less a legal scholar) for objective, scholarly comments on such matters leaves much to be desired. Suffice it to say that the three columns are replete with quotes from conversations with Justice Marilyn Kelly and former Justice Betty Weaver, both staunch and outspoken opponents of the conservative majority, with nary a comment from the other side.

Next, Judge Glazer cites the bottom-of-the-barrel ranking of the Michigan Supreme Court by a “University of Chicago Law School” study. This is the same study relied upon by the Progressive Women’s Alliance of West Michigan, various trial lawyer blogs, and the Michigan Democrats in their campaign against former Chief Justice Clifford Taylor in 2008 — though I question whether any of them ever read the article! The study is also mentioned (and misrepresented) in two of the three Lessenberry columns cited by Judge Glazer.

The “University of Chicago” study’s premise — ranking the quality of state supreme courts by using statistics — has been widely questioned and discredited within the legal community. For example, it asserts that the number of opinions written by a court is determinative of the court’s quality; a court’s goal should be to write more opinions (without considering what counts as an opinion); and being cited by a court is an indicator of a court’s quality. Note the study doesn’t refer to those opinions that are followed by other courts, but merely cited by them. Unaddressed are the obvious questions this “methodology” poses. Could the opinions be cited as standing for the wrong legal principle, or for creeping into an area of the law that is best left to the legislature?

“Independence” as defined in this study has nothing to do with campaign contributions or ruling in favor of any group, as many seem to believe. Rather, a court is considered more independent when justices from the same political party disagree with each other. This means that unanimous decisions are bad (not independent) and split decisions are good (independent). If that were the case, I suspect that the Michigan Supreme Court was one of the most independent in the country between 2003 and 2008, because after Justice Betty Weaver failed to be re-elected as chief justice (by a 6-1 margin), she refused, time after time, to join many opinions authored by conservative justices.

But most importantly, over 76 percent of the opinions examined by the “University of Chicago” study were decided before the so-called “Engler Four” were on the Michigan Supreme Court! In other words, it was largely written about the Court that preceded the Engler majority.

Focusing on the Sedler and Delaney articles, Judge Glazer concludes his condemnation of the Michigan Supreme Court conservatives by accusing them of abandoning the doctrine of stare decisis. Judge Glazer acknowledges that some may view Robert Sedler as biased based on his affiliation, some 30 years ago, with the Kentucky ACLU. However, to appreciate Sedler’s bias, you need not go that far back in history — nor do you need to leave Michigan.

Instead, simply look at Sedler’s political contribution history: he has given thousands of dollars to Michigan Democrat candidates and Democrat-nominated Supreme Court justices since 1990 — in fact, he hasn’t missed contributing in even one election cycle! In 2010 he did a video for the Michigan Democrat Party to skewer Justice Robert Young, who was running for re-election.

Or examine Sedler’s pro bono portfolio — including filing a lawsuit against the Engler Administration’s Family Independence Agency for requiring drug testing for welfare recipients back in the ’90s. Or just look at any of his myriad of statements in the press as he pontificates upon what is or is not constitutional in the liberal world of Robert Sedler. I suspect there is not a single faculty member at Wayne State University Law School, even Sedler himself, who would say that Sedler’s view of the constitution is not a liberal one.

But we needn’t rely on his historical bias to discredit Professor Sedler’s claim that the conservatives on the Court (Taylor, Corrigan, Markman and Young) overruled prior Court rulings with reckless abandon and purely for ideological purposes. His own recent attack article made the case very well:

“…In the period from 1999 to 2008, the Michigan Supreme Court overruled 38 prior decisions, a record for overrulings by one state court in a limited time frame that is truly extraordinary and that I believe is unmatched by any other state court. If there was a Guinness Book of World Records entry for state court overrulings of prior decisions, the Michigan Supreme Court would clearly hold the record.”

In the computerized legal world, not only would this claim be easy to check, but would seem standard procedure for a legal “scholar.” But, apparently, fact-checking isn’t part of the good professor’s routine.

Fortunately, not everyone has taken Professor Sedler at his word. In a soon-to-be-published Wayne Law Review article, the authors found that at least four other courts reversed precedent even more:

• The South Carolina Supreme Court overruled its own precedent 36 times between 1997 and 2003;
• The Montana Supreme Court overruled its own precedent 109 times between 1991 and 2000;
• The Alabama Supreme Court overruled at least 63 cases between 1999 and 2008;
• The California Supreme Court overruled at least 39 cases between 1999 and 2008.

The final legal scholar relied on by Judge Glazer is Sarah Delaney. While a law student at the University of Albany, Ms. Delaney attacked a shift in ideology on the Michigan Supreme Court by the “Engler appointees.” She lists 25 Court opinions that overturned precedent from 1998 to 2002. However, like the “University of Chicago” study, her timing is off. Eight of these decisions predate the “Engler-appointed” majority, and an additional three were joined by Justice Michael Cavanagh (with Justice Marilyn Kelly joining in one opinion). So 11 of the 25 opinions analyzed by Ms. Delaney (or 44 percent) don’t even fit into her thesis.

But reviling the “Engler-appointed” Court has a long and disingenuous history. After the 2008 election, soon-to-be Chief Justice Marilyn Kelly promised to “undo a great deal of the damage that the Republican-dominated court has done.” (If that isn’t judging by ideology, I don’t know what is.) The result: the liberal Kelly Court has lived up to her pledge and overturned at least 12 cases in the two years it controlled the court — a pace 30 percent greater than that of the conservative court.

But rather than including the Kelly Court’s record, Judge Glazer uses biased columns, a discredited study, and shoddy research to call for “reform” on the Michigan Supreme Court. The revival of the call for Court reform coming from the left is much like Chicken Little’s rant that the sky was falling. Well, the sky isn’t falling. And the Michigan Supreme Court works just fine. Unless, of course, you’re a liberal and want the Court to be a third chamber of the state legislature.

That’s why the professors and the pundits and the media commentators didn’t squeak a peep about the Supreme Court being broken or in need of repair from 2009-2010 when the liberals were in the majority. After all, they controlled the Court and Justice Kelly wielded the majority gavel.

But now, the Chicken Littles are chirping again, and it’s getting to be quite a chorus. But it is important to know this. When you get past all the whining and the truth twisting and the fact fudging, it is what it is: politics.

The left doesn’t like the conservative majority. It never has. It never will. And it will continue to trot out spokespeople of different stripes, each with a portfolio of liberal credentials to try to convince us all that the world is flat. I may have grown up on a farm, but I didn’t fall off the turnip truck yesterday. And neither did the people of Michigan who, after seeing what the liberal majority did in just two years, voted back in a conservative one. That’s real reform.

Colleen Pero is an attorney and public affairs consultant who analyzes the philosophical trends and decisions of state supreme courts. She has written extensively and spoken frequently on questions concerning state courts and judicial accountability. She is a former co-director of the Michigan Political Leadership Program at MSU, and was Justice Taylor’s campaign manager in 2008.