It’s never pretty when dirty linen is aired in public.
And it’s even more unseemly when being done by Michigan Supreme Court justices in concurring and dissenting opinions.
And it’s time for that to stop.
Thanks to an extraordinary amount of candor in the Court’s opinions over the last decade, and with the recent addition of televised administrative proceedings, we have gained tremendous insight into the acrimonious business of adjudication and administration at the apex of the third branch of government.
Case in point: Regents of the University of Michigan v. Titan Insurance Co. Justice Robert P. Young Jr., joined by Justice Maura D. Corrigan, bitterly complains in a dissenting opinion about the so-called “new majority,” Chief Justice Marilyn Kelly, and justices Michael J. Cavanagh, Elizabeth A. Weaver and Diane M. Hathaway. His complaint: they are doing exactly what Young and his like-minded colleagues, former Chief Justice Clifford Taylor and current justices Corrigan and Stephen J. Markman did when they first rose to power: overruling the other side’s precedents.
And, pointing to various statements Kelly made contemporaneous with Taylor’s defeat at the polls in 2008, Young charges that the new majority’s overturning of precedent is agenda-driven.
Kelly, in a concurrence, responds to Young and provides more context about her statements.
You may side with Kelly or Young. You may think that one side or the other has an agenda or lacks one.
There’s plenty of material to fuel the debate. And Kelly and Young aren’t the only ones on the Court who have added fuel to the fire over the years.
But using concurring and dissenting opinions to stoke the coals?
Although Kelly responded substantively to Young, she also had this observation:
For some years now, our disagreements on legal questions have erupted in occasionally heated and unpleasant personal recriminations. This case is a perfect example.
I know that, if asked, both Justices YOUNG and CORRIGAN would agree with my sentiments and would deplore these outbursts. Both justices fully understand that personal recriminations reduce the public’s confidence in the objectivity and wisdom of judges and in the Court as an institution.
With these reflections in mind, I urge them to reevaluate the utility of their ad hominem attacks and eliminate them. Surely each has significant confidence in the strength of their legal arguments to allow those arguments to stand on their merits, absent distracting attack props. Moreover, their personal assaults do nothing to resolve the legal issues before us; they do not benefit the parties to a case or the citizens of Michigan whom we serve.
Although Kelly’s words were directed at Young and Corrigan in this case, what she says is something all on the Court should take to heart.
To command respect, act respectfully.
This is also partially, at least, the result of increased politication of the court. CJ Kelly campaigned against then CJ Taylor, including her crack about “not sleeping on the bench,” which cannot be spun other than as was playing into the false “sleeping justice” ad run against Taylor. There was a time when sitting justices did not campaign against other justices. I believe T.G. Kavanagh was “rewarded” for refusing to campaign against sitting justices on the ground that it was a “collegial” court and would be inappropriate, by being denied the democratic nomination at the next election (he won anyway). Justices campaigning against sitting justices, with the sort of comments made in the last election, can’t help but add fuel to the fire, and is most unfortunate.
The only thing that is “unfortunate” is that you misstate the facts. CJ Kelly did not campaign against CJ Taylor. First, she was not up for reelection and thus not campaigning for anything. Second, the Freep reported that her comments were not directed at Taylor.
Plus, Young would rather engage in personal attacks than deal with the merits of a case because he no longer has a Gang of Four to back him up. His juvenile behavior, which has no place in judicial opinions, screams of sore loser.
Tim is right–in an almost unprecedented fashion, both Kelly and Weaver campaigned for Hathaway and against their sitting colleague. One need not be up for reelection to be “campaigning.”
And the Freep quoted Kelly herself who tried to say that her reference to “we will not sleep on the bench” was not directed at Taylor. I am not sure how she could say that with a straight face, or how anyone with half a brain could believe her given the importance of the “sleeping judge” ads in the 2008 campaign.
I suggest you read Young’s opinion, which deals very much with the merits, and get your facts straight.
While you express a nice sentiment, in theory, did you actually read Young’s opinion for the points he was making? It was not simply to be mean, but to call the public’s attention to: (1) the fact that the majority Justices are now overruling very recent precedents hand over fist, which was contrary to their protestations regarding the need to preserve precedent at all costs in the past; (2) that some Justices are now explicitly employing a purely subjective stare decisis analysis/test, rather than the legal tests established by the Court; (3) that CJ Kelly has established an agenda to “undo the damage” of the prior Court, and is now acting in accordance; and (4) that contrary to CJ Kelly’s attempt to be seen as “above it all” and her calls for civility now, when she was in dissent, she was not shy about being decidedly uncivil in her own concurring and dissenting opinions.
I’ll take a strongly worded dissent any day if it helps the legal community and the voting public in general know what is going on at our Supreme Court.
I tend to agree with the above commenter–the dump of opinions that came at the end of July where the MSC by several 4-3 votes reversed more than a dozen cases by merely adopting the reasoning that failed to win the day a few years ago is pretty remarkable. I agree at times with Kelly and at times with Young, but here Young was within his rights to call them out.
The issue, as I see it, is one of venue.
if a justice wants to call someone out in a dissent or a concurrence for the legal analysis of the issue at hand, that’s certainly the appropriate venue.
But use of judicial opinions and orders, by any justice, to air personal grievances, or to campaign either for yourself or against another, is a different story. That sort of thing should be kept to the political venues: opinion pieces in newspapers, appearances before civic groups, speechs at the fund raisers, advertising, press releases, news conferences and the like.
To do otherwise cheapens the Court as an institution.
I witnessed, first hand, a personal attack by Justice Young last night on the Chief Justice’s integrity. It was a disgraceful performance and was in front of the Republican Precinct Delegate County Convention.
After having to endure Young’s tirade, and reading Justice Young’s bizarre opinions, I cannot support his re-election bid. As his grip on public policy through creative judicial interpretation slips away, he is becoming more vicious and spiteful. It is almost pathological. Young is so convinced of his own personal brilliance and his mission to overturn Michigan stare decisis that he cannot cope. This from an elected Justice who listed 1 Auto Club Drive, Dearborn, Michigan, as his treasury address on his campaign Statement of Organization. Please verify this on the Michigan SOS site.
What you see is what you get with Young: an insurance industry advocate on the Supreme Court of this State. Which is worse, sleeping through arguments, or being so ideologically committed to insurance industry profits, that a sitting Justice will blithely dismiss 800 years of common law jurisprudence and attack any Justice who disagrees? Justice Young is neither clever or brilliant. Read the opinions.
An attack on the Chief Justice’s integrity? By quoting her own words? Certainly you must be kidding. I think the bigger affront is to the integrity of the legal system where she announced that she was ready to lead the charge to “undo the damage” of the past Court–and then capping the statement off by lending credence to the false sleeping judge ads that helped defeat her colleague.
The charge that Young is simply an insurance company Justice is nothing more than a tired political attack. I am not sure why simply “following the law” gets one branded all of these nasty things.