Cross-posted at BloggingForMichigan.com
Republicans love to rail about "activist judges" who "legislate from the bench." But some of the nation's worst judicial activism has been practiced by right-wing ideologues on the Michigan Supreme Court.
John Engler, a conservative Republican who never met a corporation he didn't like, was governor of Michigan from 1991 until 2003. One of his many dubious contributions to the state was stacking the appellate courts with right-wing judges. He was so successful in fact that after he left office, the National Association of Manufacturers hired him to vet judges that were acceptable to both the business community and the Religious Right.
Engler's handiwork is most evident on the state's highest court. From 2000 until the end of 2008, the "Gang of Four"--a four-member, hard-line conservative bloc–-remade Michigan law in their image and likeness.
How much damage did the Gang of Four do? Find out below the fold...
Professor Ron Bretz of Cooley Law School pored over the law books and added it up. His findings are in an article entitled New Era or Will High Court Retain Its 'Radical' Ways?, which appears in the latest edition of DomeMagazine.com.
Bretz and a colleague at Cooley, Professor Joe Kimble, determined how many years of the court's own precedent the Gang of Four overruled. Eminent domain, a right-wing hobby horse, is a good example. In 2004, the court decided Wayne County v. Hathcock, which overruled Poletown Neighborhood Council v. City of Detroit, handed down by the court in 1981. That's 23 years' worth of precedent gone right there.
Bretz points out that Hathcock was just one of many such cases:
The results are astonishing: from 2000 to 2008, the Michigan Supreme Court overruled a combined 758 years of precedent in 24 criminal decisions and 697 years in 33 civil decisions. By contrast, the U.S. Supreme Court, in a 46-year period (1946-1992) covering a volatile period in U.S. law (remember the Warren Court?), overruled its own precedent in roughly 130 cases. Averaged out, the Michigan Supreme Court overruled over seven cases per year while the U.S. Supreme Court overruled less than three cases per year.
In civil cases, almost all of the Gang of Four's precedent-killing decisions favored corporate defendants. Not only did those decision close the courthouse door to untold thousands of victims of corporate wrongdoing, they also made the law less predictable. Lawyers across the political spectrum don't like unpredictablity. It makes their jobs tougher, puts their clients in uncharted legal waters, and exposes them to second-guessing and even legal malpractice suits. (Bretz believes that one factor that contributed to Chief Justice Cliff Taylor's defeat last fall was the legal community's frustration with his court's lawmaking on the fly.)
Now that Taylor is gone from the court, the Gang of Four is down to three. However, it's questionable whether the 1,455 years of lost precedent will be restored anytime soon. Professor Bretz observes:
It is important to note that the Supreme Court still consists of a four-Republican majority. Justices Corrigan, Markman and Young are joined by fellow Republican Justice Betty Weaver. Although Weaver has had her well-publicized differences with the Gang of Four, she is fairly conservative and agreed with the majority in overturning most of the precedents referred to above.
But there is reason for cautious optimism. Booting Taylor off the court was a step in the right direction. Justice Robert Young, another member of the Gang of Four, is up for re-election in 2010, and the Michigan Democratic Party is targeting him. Justice Weaver is also up in 2010, and she might be hearing the voters' footsteps. Earlier this year, her vote formed a majority that elected Democrat Marilyn Kelly the court's chief justice. That's another step in the right direction.
Special bonus coverage: Appearing on WKAR-TV's Off the Record last November 28, the defeated Cliff Taylor oozed bitterness over his defeat. Republicans, it turns out, are sore losers as well as sore winners.