Earlier this week, Ed Wesoloski broke down the Michigan Supreme Court’s order granting leave in Anglers of the Au Sable v Dept of Environmental Quality, et al. The court said it would hear the case despite the fact that the appellant, Merit Energy, opted to drop it rather than continue its appeal.
Former chief justice Clifford W. Taylor was a guest on WJR AM 760’s “The Frank Beckman Show” to discuss the court’s decision. [Listen to the interview at the link].
About the order in Anglers:
“It’s a very strange decision. Traditionally, courts have never taken a case when one side has conceded to the other side.”
“I think they they want to advance the proposition that a court can take a case just because the parties are interested in it and just because they’re interested in it.”
“[After explaining that cases usually stop when one side stops litigating their side,] so the court is deprived of the opportunity to have a fully fleshed out argument in front of it. Court’s don’t function very well that way.”
When asked if a court can perceive a future wrong and make a decision because of it:
“Not before now… The great sweep of legal history will find almost no cases where this has happened. And when it has happened, the court has been doing something that is very unusual.”
“There’s a great debate in the United States about what courts should be doing. We’re seeing this played out in Michigan. On one side, we’re seeing the traditionalist judges, of which I was one, who felt that courts have a very narrow but important role of doing cases and controversies. On the other, you have the more aggressive rule, which is normally described as ‘the living constitution’ or the doing of good things through the court, the old rules be damned. We’re going to do what we think is right. The problem is that judges were not elected to do that. If courts start to do that they tend to get all screwed up because they weren’t elected for their policy positions. They’re elected because people think they’ll be fair and impartial.”
On whether political party nominations are a problem:
“We’ve had, for 100 years, political parties nominating candidates for the Supreme Court, and, of course, they run non-partisan after that. That worked pretty well for probably 80 of those 100 years. What happened was, there was a very aggressive element that came into the debate — primarily the plaintiff’s lawyers — who wish to have the courts disregard the law in cases which were important to them, and do what was right. And that’s the debate that we’re seeing fought out.”
He also called Justice Robert P. Young Jr. “the intellectual leader of the court” and the court’s most intelligent justice.