8/22/00 3:40 p.m.
Michigan's Supreme Court Is Supreme
The verdict is clear.

Peter Leeson is a senior studying economics at Hillsdale College. He was a summer intern with the Mackinac Center for Public Policy.

ne of the most interesting and important elections this year is one most people have heard absolutely nothing about. The campaign for the Michigan Supreme Court hasn't received much attention — but it's a crucial contest about fundamental American values.

There are two kinds of judicial philosophy: judicial restraint and judicial activism. Judicial restraint, or "strict constructionism," holds that a judge's sole duty is to interpret law in the context of the legislature's intent. Only if the legislature trespasses beyond its constitutional bounds does the court step in to reverse legislative action.

Judicial activism, on the other hand, means adjudicating not according to the rule of law, but according to the ideology or preferred policy position of the judges. An activist court does not interpret the legislature's law but creates its own. It views itself as a super-legislature whose duty is to knock the real legislature back in line when it passes laws the court considers undesirable.

Advocates of the rule of law and constitutionally limited government have long warned of the dangers of judicial activism. Activism creates an unstable legal system controlled by the whims of judges. It also erodes the separation of powers established in the Constitution, and thus weakens respect for constitutional authority in general.

We need only to look to Ohio to understand the danger of a court that seeks to square its rulings with its ideology. In part of what the Ohio Chamber of Commerce called a "troubling pattern of judicial activism," Ohio's Supreme Court reached beyond its constitutional bounds, striking down the legislature's attempt to limit frivolous lawsuits through tort reform. The unpredictable legal setting facing Ohio businesses has caused many to consider moving to Michigan, where the Supreme Court, in McDougall v. Shanz (1999), upheld the state legislature's tort reforms.

Activism acts as a back door to government expansion, by granting the state wider latitude than that given by statute. Although often advocated by political liberals, judicial lawmaking is equally dangerous to both sides of the political spectrum. Activism means that judges are given the power to create laws that fit their own personal political bents — conservative or liberal.

In Michigan, a titanic struggle is now taking place to determine which judicial perspectives will dominate the state's Supreme Court. On November 7, Michigan voters will decide anew the Supreme Court's overall stand on judicial restraint, which will in turn shape Michigan's legal environment over the next eight years. Five of Michigan's seven sitting Supreme Court Justices are strict constructionists. And with three members of the Court's conservative majority up for reelection this year, Michigan voters have a chance to affirm or reject the judicial perspective of the Court's majority.

The campaign is shaping up to be the nastiest and most costly in Michigan Supreme Court history. Democratic party activists and their union allies were the first to throw bombs, alleging racist and unduly pro-business sentiments on the part of the Court's current majority.

A lot is at stake: Michigan's Supreme Court has some of the finest justices in the nation. Michael Gadola, former president of the Michigan chapter of the Federalist Society, describes them as "intellectual powerhouses." All five members of the Court majority have had extensive experience adjudicating in Michigan's lower courts. Justice Stephen Markman served as assistant attorney general of the United States in the Reagan administration; Justice Maura Corrigan was the first woman in the country to hold the position of chief assistant U.S. attorney.

Moreover, Michigan's is perhaps the only state supreme court in the country with a majority devoted to avoiding the dangers of activism. In 1998, Justices Clifford Taylor and Elizabeth Weaver (later Chief Justice) outlined their judicial philosophy in Hagerman v. Gencorp. This important dissent described the importance of restraint in maintaining the rule of law and a predictable legal environment for citizens. It also established the direction the Court's majority would take just a year later when three additional strict constructionists would join the bench.

Elsewhere, Justice Taylor remarked that, "unlike other courts, this Court will not deprive the people of their right to self-govern by revising statutes under the guise of interpreting them." Instead, he says, the "Court's duty is to defer to the legislature, unless the act in question is unconstitutional, and to give legislation its plain meaning." That means, says Taylor, that "this Court does not engage in politics from the bench."

Justice Taylor sees the Court as bringing "Michigan back to a traditional understanding of the rule of law and judicial restraint." Justice Robert Young echoes this: "The judiciary is [not] an auxiliary legislature, nor is the judiciary free to intervene in public policy decisions of the political branches and remake them."

Gadola says these justices "strictly interpret legislative intent whether they favor the result or not." The Court's impressive track record validates his claim. Van v. Zahorik (1999) tested the Court's willingness to refrain from establishing public policy. At issue was who can be considered a "parent" under the law. The legislature defined "parent" by statute, but many thought the Court should expand this definition. True to its principle of judicial restraint, the Court declined this request. In People v. Lukity (1999), the Court again made it clear that it is the duty of the legislature, not the courts, to create law. While past supreme courts created new tests — without regard for existing statute — for deciding when criminal convictions could be reversed on appeal, the current Court repudiated this unauthorized judicial test, returning to the test created by the legislature.

Not surprisingly, the Court's approach has drawn fire from pro-activist quarters. Its opponents have accused it, for example, of favoring "big business." But as Justice Markman points out, this Court "is not pro-business or anti-business or pro or anti any other group. Rather, our commitment is to read the language of the law as faithfully as possible and let the chips fall where they may. Our responsibility is to interpret the law according to its terms, not to decide cases in favor of, or in opposition to, any particular group."

The facts support Markman's claim. Case in point: Calovecchi v. Michigan (2000). At issue was whether a worker who was mentally injured due to an improper employer demotion could recover workers' compensation benefits despite the fact that a similar worker who was fired could not. The Workers Compensation Appellate Commission, ignoring statutory language, held that the demoted worker could not receive benefits. The high court, however, rejected this opinion. According to the statute's language, demoted workers were entitled to compensation, while fired workers were not.

The Court's decision in Russell v. Whirlpool Corp. (2000) also flies in the face of pro-business accusations. In question was whether an injured worker who refused work that accommodated her injury, and was subsequently fired for absenteeism, was entitled to recommence receiving workers' compensation if she later accepted the job. While the Court of Appeals held that such a worker was not entitled to receive workers' compensation benefits, the Supreme Court disagreed. The Court observed that the legislature's statute allowed for the restoration of benefits in this situation if the employee lost her job for "whatever reason" — language broad enough to include absenteeism.

The only outcomes judicial restraint guarantees are those the legislature intends.

Judicial restraint also led the Court to overturn Lansing's "rain tax" that unconstitutionally sought to provide for the creation of a storm water system fund. The Court found the tax in violation of the 1978 Headlee Amendment that requires voter approval for tax hikes. Although the city of Lansing tried to get around voter approval by calling the tax a "user fee," the Supreme Court pointed out that a "common understanding" of the constitutional provision proved the so-called user fee to be nothing more than a tax increase.

Gadola calls Michigan's Supreme Court "the finest in the nation" because of its dedication to restraint. Victor Schwartz — co-author of the nation's leading torts casebook, and regarded by many as America's leading tort scholar — also praises the Court for "adhering to the historically established role of following law instead of making it. Its justices vigorously apply existing rules, but are not going to take upon themselves the role of retroactively changing law to suit personal political beliefs."

Michigan's Supreme Court may be the nation's best example of a court committed to interpreting the law — not manufacturing it. The philosophy of judicial restraint applied by this Court has created one of the most sound and predictable legal environments in the country. Other state supreme courts would do well to adopt its understanding of the judiciary's relationship to the legislature, and the constitutional values that are the underpinning of our free society.