How to Steal A State Supreme Court
Goo-goo reforms are hardball partisan politics in disguise.


Jonathan H. Adler

Most distressing, and revealing, is how the Reform Michigan Government Now plan “reforms” the state judiciary. Specifically, the ballot initiative selectively alters the composition of Michigan state courts at every level — trial courts, appellate courts, and the supreme court — each by a different standard. The only unifying theme is that each reform will increase the proportion of Democrat-appointed judges.

As in many states, Michigan’s supreme court justices are subject to re-election, giving court critics ample opportunity to seek change through traditional political means. But, the presentation explains, defeating incumbent justices would be costly and difficult. So, rather than promote candidates for the Court who would rubber stamp a pro-Democrat redistricting effort, and seek to have them elected fair and square, initiative proponents want to seize partisan control of the Court in one fell swoop by eliminating two seats and removing two Republican appointees from the Court. This is no accident, as the presentation makes clear when describing the relevant plank in the proposal: “Reduce the number of Supreme Court justices from seven to five; two GOP justices eliminated” (emphasis added).

The proposal would also eliminate eight seats on the state courts of Appeals, six of which are held by Republicans. This, too, is no coincidence, as the slides trumpet that “most” of the judges who would lose their jobs were appointees of former Republican Governor John Engler. But the plan is not about shrinking government down to size, as it would allow the state’s current Democratic governor to place ten new trial judges on the bench.

The PowerPoint presentation explains how the initiative’s cynically hope to exploit voter discontent in order to advance a narrow partisan agenda: “In 2008, use the public’s very negative mood and high level of discouragement about state government (the worst in 25 years) to enact a ballot proposal which comprehensively reforms state government, including changing control of the structural obstacles to Democratic control of state government in 2012-2021.”

Somewhat ironically, the presentation reports that the “very negative mood” among Michigan voters is partly due to tax increases pushed through by the state’s Democratic governor, Jennifer Granholm. Indeed, it is these tax increases, and resulting public upset, that makes Michigan Democrats’ near-term electoral prospects so dim. Hence the need for the stealth strategy outlined in the UAW slides. The presentation explains how key measures can be packaged successfully with more popular reforms — such as cutting politicians’ pay — so as to ensure its passage.

A populist campaign that focuses on “accountability” and “reform,” the presentation’s authors note, should cost only $5 million, “Less than half the cost of trying to beat an incumbent GOP justice.” Yet the plan is also so brazen that it has some Democratic lawmakers upset. One Democrat-appointed judge even called the plan “reverse court packing,” and he did not mean that as a compliment.

Another irony about the Reform Michigan Government Now campaign is that it may have violated state campaign laws, as well. The presentation was prepared in 2007, and utilized polling and focus-group data commissioned earlier that year. Yet the ballot initiative campaign committee did not file with the state until 2008. This violates state campaign finance law disclosure requirements, according to the Michigan Chamber of Commerce, which is planning to file a formal complaint.

Hardball politics and partisan redistricting are nothing new. Republicans have certainly done their fair share. There is also no novelty in pushing redistricting proposals through ballot initiative, or in hard-fought judicial campaigns. What is remarkable here is the brazen effort to sidestep the traditional political process and seize control of the state judiciary so as to advance a blatantly partisan agenda.

There may well be a need for governmental reforms in Michigan, and many of the specific “Reform Michigan Government Now” proposals appear to have some merit. But it also seems quite clear that union activists and others are using this reform initiative to seize a partisan advantage they have been unable to achieve through politics as usual. They are intent on seizing control of Michigan government, including the courts, even if they have to rewrite the state constitution to do it.

– Contributing Editor Jonathan H. Adler is Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.