The Politics and Personality of Justice

by John Lindstrom
Gongwer News Service
August 27, 2010

Before considering the intrigue that who sits on the Supreme Court can cause, and by that we mean any person sitting on any Supreme Court whether it is John Marshall or Elena Kagan on the U.S. Supreme Court or Thomas Cooley or Alton Davis on the Michigan Supreme Court, think first of how lucky we are to be able to worry about who sits on the Supreme Court at all.

After all, that is the beauty of the common fiction we live by in civil society. We live by the rules of our society not because nature or divine majesty compels us to, but because we agree both subconsciously and consciously to abide by the contrivances we have created. So instead of worrying about sharpening rocks to hunt rabbits and squirrels, or trying to rebuild mud huts washed away in floods, we can say there is something called a Supreme Court, and we can really think it’s important, and we can wonder and worry about who sits on its bench.

So take a sip of your latte and feel both good and guilty about how really honest-to-pete spoiled you are that you can dither about Supreme Court justices and not about how that guy next to you has a big rock pointed at your head and a really hungry look in his eye.

Okay, enough of that.

If there is anything that the soap opera of now former Justice Elizabeth Weaver and the Michigan Supreme Court demonstrated in the last decade, it is the intensely personal and political nature of the application of law — in that it helped to both defuse and define some realities of judging. (And for the purposes of this column, ignore the wounded howlings of the role politics played in the dramatic shift of justices that took place on August 26. Both parties have played their role to politicize the court, or attempt to politicize it, and both share in the criticism for whatever role politics plays in the administration of justice.)

Decades ago the Doonesbury strip had a law professor asking a class what a knowledge of law tempered by a sense of morality should create. When no one answered he shouted: “Why, a sense of justice!” “Will that be on the exam?” came the reply, and the prof in frustration muttered, “No.”

But then how are those principles defined? And more particularly, how are those definitions applied? What is the basis of the morality a jurist applies to his or her knowledge of the law, and how is that basis affected by their status, their upbringing, and who asked them to lunch that day. Each of these plays a role in the final outcome that we accept grudgingly or not as justice.

Let us accept, for once and for all, that like unicorns there is no such animal as a judicial strict constructionist. No jurist can be a good jurist without actively interpreting the law, and that means the idea of a strict constructionist simply is a fantasy. Laws have to be applied given particular circumstances, and it is impossible for any Congress or legislature or city council to anticipate all circumstances. The essential law may be simple (look at the Ten Commandments for example), but the application is anything but simple (look at the Talmud for example).

So for all the political squawk about activist judges, it is time for the mature recognition that conservative or liberal, a good judge has to be an active judge. Even the act of discerning what the governing body meant while interpreting and applying the law is an activist…what?…act, action, activity, activation. It’s active, kids, it’s alive and kicking.

In one way then, the saga of Ms. Weaver and the Supreme Court current and recently past has helped us clear away that strict constructionist fantasy. All the protests by the justices that they were simply applying the law as intended just doesn’t fly with anyone who watches how the legislature really works. Michigan had a conservative activist court, and while one might question the results, one cannot say the court was not doing what it is supposed to do.

The years of growing tension and discord between the justices, that played itself out in the decisions that dripped with bitter acid, helped expose the basic truth of judgeship: that judging is an active profession. So frankly, we as a public should thank the court and its battling barristers for knocking the ugly sense into us.

But what about the personalities, what about friendships and alliances, conflict and enmity between judges that helps define and decide the law? These last 15 or so years have also exposed the sad reality of the human imperfectability of judging. One supposes that again we should be thankful that ugly sense has been knocked into us, but really do we want to be grateful for that?

The ongoing fight between Ms. Weaver and at least the Republican members of the court has been likened to a high school hallway brawl in judicial robes and footnotes. It may have all the trappings of an intellectual dispute, but any good and honest reading of the voluminous written record left behind reveals the sad and somewhat painful reality.

Just like a high school fight, this has been personal, really personal, really personally ugly. The wounded egos, bruised feelings and anguished psyches cry out through the pages. One can easily envision some of the most powerful judges of the land citing precedents and drawing dicta with tears running down their cheeks or their teeth gritted so tightly in anger their molars might crack.

At least once, in a cry out to Ms. Weaver from Justice Maura Corrigan for them to put aside their differences and try to restore some semblance of friendship, the human toll of jurisprudence was made unquestionably plain.

The disputes had been growing for awhile, the acrimonious authorship becoming more common through the 1990s, but what really seemed finally to trip the balance towards outright outrage was the court’s decision to deny Ms. Weaver a second term as chief justice. Most chief justices get a second term. She did not, and it hurt her. It hurt her, one can’t but help to think, in a way few things have done in her life.

Unless some memoir of those years is written soon we may never truly know the full extent of what the problems were that led all the other members of the court — those who would become her friends and allies as well as those who would become her implacable enemies — to vote to reject her bid for a second chief justice term. We won’t know if there were attempts at intervention, at conciliation, at counseling, at an altar call, at whatever it might have taken either for Ms. Weaver to get the second term or to recognize the fight was lost.

But we have to know that from that time in 2001 until the breach exploded in full view in 2007 that the anger and the hurt and the sense of wronged injustice on both sides played a part in altering the interpretation and application of justice in Michigan. Was it spite or a better sense of justice that led to some of the decisions, on either side? In any of the decisions was there ever a subtle call to come home, to give up the dispute? That we may not fully be able to tell. All we do know is that it did not seem that the legal decisions made were based solely and wholly just on the question of law. It did not seem so. Perhaps a cooler analysis years from now will show that personalities played no part in the justice rendered. For now though, one cannot escape the sense that private feelings were as much a part as judicial precedent in the court’s action.

Again, mayhaps we should be grateful for being reminded of the role humanity plays in justice. There is an old legal principle that a judge may still rule against what the law says if, in the judge’s opinion, the law would create an injustice. Opinion is really just nice multi-syllabic word for one’s feelings. Justice is never really truly defined, it is felt. Justice is more an emotion than an intellectual ideal. Certainly, the pain of injustice is clearly felt and for several years that pain was played out by the Michigan Supreme Court.

Ah, but we are spoiled. We do not have to watch over our shoulders at the vultures circling to eat our starved bones. We get to deal with the sweet convenience of civil society, even when, as the court has shown for too long, it isn’t necessarily civil.

John Lindstrom is publisher of Gongwer News Service. For nearly 50 years in Michigan, Gongwer News Service has provided independent, comprehensive, accurate and timely coverage of issues in and around Michigan’s government and political systems. For subscription information, including a free trial, visit Gongwer online.