Michigan is stuck in a rut. Whether it’s our state’s economy or its government, innovation has been absent, and the consequences are visible everywhere. But our propensity toward stagnation isn’t limited to the economy; it seems to pervade everything in the state.
The justice system is no exception. In May, the University of Chicago Law School published a paper called “Which States Have the Best (and Worst) High Courts?” Michigan ranked dead last.
While there are a variety of methods for determining the effectiveness of a state’s Supreme Court system, this analysis was unique in its use of three ranking factors: the total number of opinions issued each year, the number of times a court’s opinions were cited in rulings by other states and the degree to which judges ruled independently, defined by how often they didn’t vote in blocs by party affiliation. Out of the 52 high court systems (Texas and Oklahoma both have two), Michigan placed 40th in opinion output, 42nd in out-of-state citations of opinions and 52nd — by a wide margin — in independence of justices.
Two particular problems afflict our judicial system: how the system works and the people who work within it. Systemically, the problem is our illogical method of electing judges on a non-partisan ballot after political parties have nominated them. Candidates are funded by and grounded in a political philosophy that the actual ballot doesn’t mention.
Our current problem, though, is worsened by the judges sitting on the Supreme Court.
Back to the University of Chicago study: Michigan judges were clearly the least independently minded in the country. The researchers measured this by first identifying the political affiliation of each judge and then observing the degree to which they broke with their party by making dissenting opinions. Our fair state really managed to stand out. Michigan’s justices were so driven by partisan thinking that the statistical divide between second-to-last Indiana and Michigan was equivalent to the total difference between all five top states.
Our current majority bloc consists of four conservative judges known as “the Federalist Four.” One man — then-Gov. John Engler — appointed each of them. On a court of seven justices, these four are bound to win when they stick together, which they almost always do.
Though each of the four needed to win a public election after appointment, their incumbent status provided them a huge advantage — one that helped each of them win. While party affiliation isn’t mentioned on the ballot, incumbent candidates do get a tag after their name that states “Justice of the Supreme Court.” If I knew nothing about either candidate, I would certainly be tempted to go with the one who was already there, the status quo. And it requires little stretch of the imagination to suggest that a majority of voters have no idea of the differences between the two justices currently running.
But we should learn the difference. Justices are elected for fairly long terms (eight years), and this year we have an opportunity to break up the “Federalist Four.” Chief Justice Clifford Taylor is the incumbent running against Diane Hathaway of the Wayne County Circuit Court.
In an unscientific poll by Michigan Lawyers Weekly, subscribing lawyers gave Taylor the lowest overall rating, ranking him lowest in knowledge of law, preparedness, efficiency and thoroughness. Thanks to Engler, Taylor got his foot in the door, and voters have unknowingly let him stay.
It is impossible to say whether replacing Taylor with Hathaway will invigorate the Supreme Court with the independent thinking it currently lacks. But the status quo is pretty bad. We need to cast an educated vote to decide if that is what we want. Supreme Court elections are non-partisan, at the very end of a long ballot and not included in a straight-ticket vote. Find out the strengths and weaknesses of each candidate and then make it to the end of the ballot in November.
My personal politics lean toward one particular option, but over and above that, the buzzword of the year — change — continues to have a nice ring to it. Let’s de-stagnate Michigan.
Bryan Kolk can be reached at email@example.com.