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Monday, October 12, 2009

Courts - "Restoring judicial restraint: Running roughshod over GOP precedents would only diminish court's moral authority"

That is the headline to an editorial in yesterday's Detroit Free Press. It begins:

In the decade between 1998 and 2008, a Republican Michigan Supreme Court majority installed by Gov. John Engler dramatically recast the rules by which criminal and civil litigants are obliged to play.

The impact of their decisions was felt in virtually every sphere of state law, from consumer rights and employer-employee relations to environmental regulation and landlord-tenant disputes. The chief beneficiaries were the same interests -- insurance companies, health care providers and other large corporations -- whose campaign donations bankrolled the GOP justices' ascendancy.

By 2006, according to an analysis by the Michigan Law Weekly, the Engler Court (under a succession of GOP chief justices) had reversed 61 state Supreme Court precedents in just five years -- more than three times the 18 overturned by its Democratic-controlled predecessor court in the same period of time.

In a blistering dissent in Rowland v. Washtenaw County Road Commission -- a 2007 case in which the Republican majority reversed two more 30-year-old precedents that had made it easier for injured motorists and pedestrians to sue a negligent municipality -- Democratic Justice Marilyn Kelly said the GOP's disdain for precedent was destroying "the certainty and stability of the law" and undermining respect for the court.

"What has changed ... to compel a complete reversal in this law?" Kelly asked. "There is but one answer, the makeup of the court."

Now the situation has turned around, and the Democrats have a majority on the Michigan Supreme Court. Should they pursue the same course, and overturn the new Republican precedents? That is the question explored in this editorial. It continues:
Now, as the state Supreme Court begins a new term, there's new chief justice at the helm -- none other than Kelly herself. The 2008 election, in which Democratic challenger Diane Hathaway unexpectedly defeated the sitting chief justice, Engler-appointee Cliff Taylor, has given Democrats a tenuous working majority on the state's highest court -- although it hinges, for at least the next 14 months, on the mercurial Justice Elizabeth Weaver, a dissident Republican who feuded bitterly with Taylor and joined with Democratic justices Hathaway and Michael Cavanagh to assure Kelly's election as chief justice.

Which raises the question: Now that Democrats are in charge, will they be any more respectful of the legal precedents they disagree with than their Republican predecessors were?

This newspaper spent much of the last decade criticizing the Engler Court for its obsequious deference to insurance companies and other deep-pocket defendants. We were particularly dismayed by rulings that dramatically enhanced insurers' power to deny legitimate claims, sanctioned contracting practices that bordered on fraud, and stripped Michigan residents of their longstanding right to sue polluters.

And Free Press readers might expect that we would be in the vanguard of those demanding that the new majority hasten to reverse those destructive rulings, which have effectively barred the courthouse door to many citizens with legitimate legal grievances.

But our quarrels with the Engler Court arose over both its work product and its arrogant disregard for precedent. We worried that so many abrupt revisions of settled law would undermine the court's legitimacy, and we shared then-Justice Kelly's alarm at the frequency with which the Engler justices "declared themselves more capable of understanding the law and reaching the 'right' result than any justice who sat before."

In the long run, any majority determined to "correct" all its predecessors' mistakes was a threat to the rule of law. * * *

[I]f the new majority wants to restore respect for its court and the rule of law, Chief Justice Kelly and her colleagues must show greater self-restraint than the Republican zealots they so recently dislodged.

Democrats can hardly reinvigorate stare decisis -- the reasonable conviction that the rules of the game shouldn't change every time a new referee takes the field -- by reversing every questionable call its predecessors made.

In many instances, emasculated litigants will have to look to state legislators, not Democratic justices, to clarify or restore rights the Republican court took away.

That will not please plaintiffs' lawyers and labor unions who've bankrolled Democratic justices in the hopes of rapid relief, but it's the only way those justices can re-establish the court's squandered moral authority.

Liberals should remind themselves that only a similar display of self-restraint on the part of conservative justices preserved such landmark U.S. Supreme Court rulings as Miranda v. Arizona and Roe v. Wade long after the justices who wrote them were gone.

Posted by Marcia Oddi on October 12, 2009 03:41 PM
Posted to Courts in general