Sunday, November 9, 2008

Michigan's Supreme Court now a little less crazy

At least, that is my hope. Because something really unexpected happened this past Tuesday. A longstanding member of the Michigan Supreme Court, the current Chief Justice and one of the gang of four ultra-conservative judges (out of seven) (or what I referred to as the "four horseman" for literary value, though one is a woman) has been voted out. This is a bigger deal than it might seem for many reasons. First, no sitting justice has lost re-election since 1984, and then it was a really unusual situation (which I won't go into here). Suffice it to say that I was so sure that Cliff Taylor would win re-election that I didn't even bother to check the results in the morning after the election. Needless to say I was very pleasantly surprised (more like shocked out of my skull) when I heard on NPR on the way to work that Hathaway had beaten him.

For years now, as I've mentioned before, Michigan's Supreme Court has been the most radical right-wing supreme court in all 50 states. That's not hyperbole. That is simple fact. Michigan certainly is not a radical-right state, so they were very out of touch with the populace. Of course, since most of the populace has no clue about the state judiciary, and since they are "non-partisan" elections, this mis-match never seemed to make any difference come election time. Maybe this time it was just on Obama's coattails. I did get at least one mailing from Obama that showed a picture of Hathaway, the Democratic challenger. There was also a libertarian on the ticket, though it looks like Hathaway got enough votes that she would have won even if pretty much all of his votes went to Taylor. I'd be very interested to know just what made the difference. Usually there are two judges up for re-election at a time, but since there are seven justices, one race in eight has just one. Maybe that made a difference. It could be it left fewer names to split the vote around, which went against Taylor. It could be that the GOP is lucky that two of theirs weren't up for re-election or else they'd have lost two seats. Though ultimately it doesn't matter now. I'll take it!

It will be very interesting to see what happens on the court now. We'll have a nominal 3-3-1 split. Corrigan, Taylor, and Young of the "gang of four" are still in place. Kelly and Cavanaugh are the two liberals on the court, soon to be joined by Hathaway. That leaves Weaver in the middle as the wild card. She is extremely conservative, but occasionally would break with the "gang of four." Things get even more complicated by the fact that some say she can be erratic and she also is purported to hate the "gang of four," in large part because they did not renew her as Chief Justice.

Chief Justice is selected by the Justices for two-year terms. With the "gang of four" in place, only conservatives got to be Chief, and that included Weaver. But then she is purported to not have had a good term and so she was not renewed. Further bad blood has gone on since, as one can see reading the Fieger decision and the various concurrences and dissents. It reads at times more like high-school bickering than a judicial opinion which, while highly entertaining, does not reflect well on Michigan. So we will have a nominal 3-3-1 split. It is anyone's guess who will be Chief Justice. Since Weaver hates the gang of four, and since no one probably wants Weaver again, it seems likely one of the liberals would get the spot. It should be interesting to see what happens.

What will be more interesting yet is figuring out how the court will rule on any given case. With the split as it is, Weaver could very well be the deciding vote on every important (and even not-so-important) case the court decides. To say she can be unpredictable is an understatement. All bets are off. It will be an "interesting" term, in the chinese curse sense of the word. And yet it will be a time of hope, as now one cannot automatically write off every case as a lost cause because of the ultra-conservative court. The Michigan Bar is probably going to be holding its breath a lot starting in January.

On a personal note, this sort of kills my series on the decisions of the ultra-conservative court. With any luck those decisions will be overturned soon. Okay, that's overly optimistic. What may happen are deadlocked, non-majority decisions, leaving the binding caselaw with the lower Court of Appeals, which is dominated by plenty of ultra-right judges of its own. I guess I shouldn't close the books on that series just yet. (If I ever have the time for it).

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