From the DFP via How Appealing:
Restoring judicial restraint
Running roughshod over GOP precedents would only diminish court’s moral authority
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.”
What’s good for the goose?
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?
Process matters, too
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.
DéjÀ vu?
The court’s leadership change has not diminished our concern. Even before the new term began, the new Democratic majority (buttressed by the renegade Weaver) had signaled its own impatience to begin dismantling the Engler Court’s legacy when it agreed to reconsider an appeal the court had rejected just a month before Taylor’s departure. The revived appeal appears to hinge on the court’s willingness to reverse two of the Engler court’s more recent decisions.
Republican Justice Robert Young Jr.’s objection to this about-face — his dissent complained that the plaintiffs had raised no new issue in their request for a rehearing, and that nothing but “the composition of this court” had changed — eerily echoed Kelly’s 2007 complaint.
Although court-watchers may smile at Young’s hypocrisy, there is more at stake here than ironic amusement.
Young and his GOP colleagues worked assiduously to rig the tort system in favor of the insurers and corporations who are the plaintiff bar’s favorite targets. But if 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.
Setting a new standard
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.
Additional Facts
Disturbing precedents
Some notable cases in which the Engler majority eroded the rights of Michigan citizens:
Rory v. Continental Insurance (2005): Republican justices overturn a long line of state Supreme Court cases that had barred insurers from enforcing take-it-or-leave-it contracts, such as the ones most auto insurance policyholders have, if the terms of that contract were unreasonable on their face.
Michigan Citizens for Water Conservation v. Nestle (2007): GOP majority dramatically reduces polluters’ liability, ruling that only citizens who have sustained “particularized harm” may sue to stop violations of Michigan’s Environmental Protection Act.
Liss v. Lewiston Richards (2007): Republican justices narrow consumers’ legal protection against fraud, ruling that home builders and other professionals licensed by the state are exempt from the provisions of Michigan’s Consumer Protection Act.
Turtle Talk 