An interpretivist judge and the media

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 149-158

  Markman, Stephen J ^a  

^a Michigan Supreme Court ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 63849276877     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (46)

1. See Am. Trucking Ass'ns v. Smith, 496 US. 167, 201 (1990) (Scalia, J., concurring in the judgment) (stating that the role of the judiciary "is to say what the law is, not to prescribe what it shall be");
2. Mich. United Conservation Clubs v. Sec'y of State, 630 N.W2d 297, 313 (Mich. 2001) (Markman, J., concurring) ("[I]t is the responsibility of the judiciary to say what the law 'is/ not what it believes that it 'ought' to be."
3. (citing Marbury v. Madison, 5 US. (1 Cranch) 137, 177 (1803))).
4. See, e.g., Stokes v. Chrysler L.L.C., 750 N.W.2d 129, 142-46 (Mich. 2008);
5. Nat'l Wildlife Fed'n v. Cleveland Cliffs Iron Co., 684 N.W.2d 800, 815-25 (Mich. 2004);
6. Terrien v. Zwit, 648 N.W.2d 602, 611-16 (Mich. 2002);
7. Robertson v. Daimler Chrysler Corp., 641 N.W.2d 567, 581-83 (Mich. 2002).
8. See, e.g., Cameron v. Auto Club Ins. Ass'n, 718 N.W.2d 784, 797-98 (Mich. 2006) (Markman, J., concurring);
9. id. at 810 n.12 (Cavanagh, J., dissenting);
10. id. at 811 n.1 (Weaver, J., dissenting);
11. id. at 814-16 (Kelly, J., dissenting).
12. See, e.g., Nat'l Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524, 541-42 n.23 (Mich. 2008) ("The dissent inadvertently illustrates the principal infirmity of reliance upon legislative history, namely that it affords a judge essentially unchecked discretion to pick and choose among competing histories in order to select those that best support his own predilections.").
13. See, e.g., Mayor of Lansing v. Mich. Pub. Serv. Comm'n, 680 N.W.2d 840, 846 (Mich. 2004) ("The dissent avoids the difficult task of having to read the actual language of the law and determine its best interpretation by peremptorily concluding that [the statute] is 'ambiguous/ A finding of ambiguity, of course, enables an appellate judge to bypass traditional approaches to interpretation and either substitute presumptive 'rule[s] of policy/ or else to engage in a largely subjective and perambulatory reading of 'legislative history.'" (citations omitted)).
14. See, e.g., Grebner v. State, 744 N.W.2d 123, 126 (Mich. 2007) ("The consideration and balancing of 'public' and 'private' interests in this case do not require that this Court construe these or any other terms in a 'broad' or 'narrow' manner, as asserted by the Court of Appeals dissent. Rather, such terms need only be interpreted in a reasonable manner.");
15. Melson v. Prime Ins. Syndicate, 696 N.W.2d 687, 701 (Mich. 2005) (Markman, J., dissenting) ("[The concurrence] not only misapprehends this Court's 'judicial power' by defining it in an overly narrow fashion, but arguably manages at the same time to define this power in what some may view an overly broad fashion... .");
16. Brown v. Genesee County Bd. of Comm'rs, 628 N.W.2d 471, 480 n.5 (Mich. 2001) (Markman, J., concurring) (stating that a particular case "was decided during a period in which this Court gave the term 'governmental function' a narrow reading, while giving broad readings of the statutory exceptions to governmental immunity" and that "[i]n contrast with that prior era, we now interpret the term 'governmental function' broadly and construe the exceptions narrowly").
17. See Mark A. Behrens & Cary Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 CORNELL J.L. & PUB. POL'Y 273, 275 (2002) (noting that "[i]n Michigan, a contentious race for three supreme court seats cost at least $16 million" and providing two examples of politicized advertisements from Michigan judicial elections in 2000);
18. Cristopher Rapp, Note, The Will of the People, the Independence of the Judiciary, and Free Speech in Judicial Elections after Republican Party of Minnesota v. White, 21 J.L. & POL. 103, 118-19 (2005) (offering three examples of politicized television advertisements from recent Michigan Supreme Court races).
19. My point here is not to defend originalism or interpretivism - the latter being the term I prefer to describe my own judicial philosophy - although I accept either characterization. Rather, my purpose is simply to suggest that those jurists who adhere to these doctrines will generally find themselves disproportionately disadvantaged by media communications to the public. The values and premises that underlie an interpretivist philosophy tend to be less well understood, and less highly regarded, by the media than the values and premises that underlie a noninterpretivist philosophy. In particular, and most obviously, the media's focus on winning and losing parties - an altogether understandable focus - accords little attention to the process by which a judge or justice reaches his results. As the debate over the judicial role intensifies in this country, these communications become of increasing importance to state appellate judges who must periodically present themselves to the people for retention or reelection.
20. See, e.g., Editorial, Interest groups battle to influence justices, TRAVERSE CITY RECEAGLE, May 30, 2008, at 4A ("A recent study of judicial elections in Great Lakes states dispels any doubt that a 'For Sale' sign figuratively - if not literally - should be nailed to the Michigan Supreme Court chamber.");
21. Ted Roelofs, State high court ranks low: GR forum examines its flaws, GRAND RAPIDS PRESS, June 18, 2008, at B3.
22. See, e.g, Cameron v. Auto Club Ins. Ass'n, 718 N.W.2d 784, 790 (Mich. 2006) ("If the statute has provisions that are harsh, they undoubtedly reflect the compromises that were hammered out in the Legislature.... It was for them, the legislators, not us, the judges, to weigh the 'competing interests' and 'cho[o]se the resulf....");
23. id. at 800 (Markman, J., concurring) ("This Court lacks the authority to alter a statute simply because it is confident that such alteration will better fulfill some supposed purpose.");
24. Robertson v. DaimlerChrysler Corp., 641 N.W.2d 567, 581-82 (Mich. 2002) ("[W]e believe that it is the constitutional duty of this Court to interpret the words of the law-maker, in this case the Legislature, and not to substitute our own policy preferences in order to make the law less 'illogical.'").
25. See U.S. CONST, art. III, § 1.
26. See MICH. CONST, art. VI, § 1.
27. See U.S. CONST, art. I, § 1;
28. MICH. CONST, art. IV, § 1.
29. See FTC v. Jantzen, Inc., 386 US. 228, 235 (1967) ("The Legislature has the power to decide what the policy of the law shall be."
30. (quoting Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908)));
31. Stanard v. Olesen, 74 S. Ct. 768, 771 (Douglas, Circuit Justice 1954) ("[I]t is for Congress, not the courts, to write the law.");
32. Cameron, 718 N.W.2d at 790 ("It is the legislators who establish the statutory law because the legislative power is exclusively theirs.").
33. 15.5 U.S. (1 Cranch) 137 (1803).
34. Franklin D. Roosevelt, A "Fireside Chat" Discussing the Plan for Reorganization of the Judiciary (Mar. 9, 1937), in 1937 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 122, 126 (1941) ("We want a Supreme Court which will do justice under the Constitution - not over it").
35. No judge would ever be explicit in saying that he construes the law as he wishes notwithstanding what the law says. Noninterpretivist judges, however, will be far more embracing in their decisions of such terms as "ambiguous," "balancing," and "spirit," and far more willing to base conclusions on "legislative history," "public policy," "equity," and "broad" and "narrow" constructions of the law, all of which will sometimes suggest a judicial determination to avoid the constraints of the written law. Such words and phrases ought to be carefully scrutinized to determine if a judicial decision is genuinely compelled by the law or instead by the judge's own personal sense of justice or conscience.
36. See, e.g., Rowland v. Washtenaw County Rd. Comm'n, 731 N.W.2d 41, 58 (Mich. 2007) (Markman, J., concurring) ("Justice Kelly [writing in dissent] would do well to share her own standards concerning when she would or would not overrule such obviously distasteful precedents.");
37. Terrien v. Zwit, 648 N.W.2d 602, 614 (Mich. 2002) (Markman, J.) ("[W]e are curious as to the dissent's basis for asserting that a policy is truly a 'public' policy as opposed to merely a judge's own preferred policy.");
38. id. at 615 ("The dissent offers no factors or criteria for a court to evaluate, it offers no guidance as to the particular circumstances that should be reviewed by a court in its analysis, and it offers no direction regarding when a court should conclude that a [commercial enterprise] has been transformed into a non-'business' because of its location.");
39. Robertson v. DaimlerChrysler Corp., 641 N.W.2d 567, 582 (Mich. 2002) (Markman, J.) ("In support [of its position], the dissent merely reiterates its view that the words of the statute must be subordinated to what the dissent believes are better policy choices, in other words, its policy choices. The dissent offers no argument that the four words that [it] would strike from the law are read unreasonably by this majority, or that a reasonable alternative interpretation exists.").
40. See Robinson v. City of Detroit, 613 N.W.2d 307, 319-22 (Mich. 2000) (stating that, when deciding whether to overrule precedent, the court considers whether the earlier decision was wrongly decided and whether overruling such decision would work an undue hardship because of reliance interests or expectations that have arisen).
41. Mich. Citizens for Water Conservation v. Nestle Waters N. Am., Inc., 737 N.W.2d 447, 449, 452-53 (Mich. 2007);
42. see, e.g., Peter Luke, Court takes rights from citizens, KALAMAZOO GAZETTE, July 29, 2007, at A18 ("A Supreme Court that often says cases should be decided strictly on the plain language in a statute, said in this case that 'any person' doesn't mean 'any person' at all.").
43. See Mich. Citizens, 737 N.W.2d at 449-50.
44. See, e.g., Pat Shellenbarger, Milliken: Water ruling 'major setback': Former governor says decision destroys intention of state's Environmental Protection Act, GRAND RAPIDS PRESS, Aug. 5, 2007, at Al ("To former Michigan Gov. William Milliken, 'anyone' means 'anyone.'");
45. Editorial, Supreme Court turns State Environmental law on its ear, BAY CITY TIMES, Aug. 26, 2007, at 8A ("[T]he Supreme Court in a 4-3 ruling twists state environmental law into something the original signers of the Michigan Environmental Protection Act don't recognize.").
46. See, e.g., Harvey v. State, 664 N.W.2d 767, 776 (Mich. 2003) (Weaver, J., dissenting) ("This Court is not simply a rubber stamp for anything the Legislature enacts.").