Gender, race, and partisanship on the Michigan Supreme Court.

• Author: Martin, Elaine

INTRODUCTION

Judicial research has increasingly focused on the importance of state supreme courts as players in policy-making. If only because of the large volume of cases that they hear each year, state courts of last resort exert a tremendous influence. State supreme courts have come to the attention of judicial scholars recently because of a trend called the "new judicial federalism" in which civil rights litigants, facing the increasing conservatism of the Supreme Court, have made a strategic shift to state courts.(1) In 1986, United States Supreme Court Justice William H. Brennan Jr. wrote that the "`[r]ediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions ... is probably the most important development in constitutional jurisprudence in our time.'"(2) A number of scholars have tracked the new judicial federalism, focusing on the policy development potential of state supreme courts.(3) State supreme courts relied on state constitutional guarantees to afford their citizens greater protections in only ten cases between 1950-1969. In contrast, the courts' reliance on the greater protection of state constitutions occurred in over 300 cases between 1970 and 1986.(4) The success of this strategy relies on the more liberal propensities of some state high courts and their willingness to use state constitutions to afford their citizens greater protections.(5) Long known for their conservative bents,(6) it has been suggested that state courts have become more liberal with respect to civil liberties, in part, because of changes in the values reflected in the judges' attitudes and the type of litigation and arguments that come before appellate courts.(7) This change in perspective has accompanied a decline on the bench in the number of "economically comfortable" white Protestant men,(8) with substantial prosecutorial experience, and a concomitant increase in racial and gender diversity among judges.(9) The Michigan Supreme Court offers an interesting opportunity for a case study to examine the impact of gender, race, and partisanship on judicial voting behavior.(10)

1. RACE AND GENDER DIVERSITY ON THE MICHIGAN SUPREME COURT

   Michigan has the distinction of having more racial and gender diversity than most state high courts.(11) In 1977, Michigan became one of only nine states to have a woman on their state's highest court.(12) Justice Mary Coleman, a white Republican, went on to become the first female Chief Justice of a state supreme court.(13) After Chief Justice Coleman's retirement in 1983, a white Democrat, Patricia Boyle, resigned her federal district court judgeship to accept appointment to the Michigan Supreme Court.(14) Shortly thereafter, Dorothy Comstock Riley, a white Republican, joined her.(15) In 1994, Elizabeth Ann Weaver, also a white Republican, was elected to the court.(16) In 1996, Marilyn Kelly, a white Democrat, was elected, joining Justices Weaver, Boyle, and Riley, making Michigan the only state in the United States at that; time to have a majority of women on its high court.(17) That majority tenure was brief, ending with Justice Riley's resignation in 1997(18) and her subsequent replacement by a white, male Republican.(19) The first African-American to serve on the Michigan Supreme Court was Otis Smith, who served from 1961 to 1967.(20) In 1985, Dennis Archer, a Democratic male, became the second African-American to join the Michigan Supreme Court.(21) When he resigned in 1990, Conrad Mallett, an African-American Democrat, replaced him.(22) In 1997, Justice Mallett became one of the first African-Americans to ascend to the role of chief justice on a state's highest court.(23)

   In 1998, Justice Riley chose not to run for a third term, and was replaced on January 1, 1999 by Maura Corrigan, a white Republican woman.(24) Additionally, Justice Mallett resigned, replaced by an African-American Republican male, bringing over twenty years of Democratic Party majorities on the court to an end.(25)

   The composition of the court, however, remains dominated by "nontraditional" justices: three white women and one African-American man on a seven-member panel.(26) The court today (2000) is comprised of three women, one African-American man, and three white men, including five Republicans and two Democrats.(27)

2. PARTISANSHIP ON THE MICHIGAN SUPREME COURT

   Ostensibly, Michigan Supreme Court electoral races are nonpartisan; party affiliations do not appear on the ballot. However, candidates are nominated by party conventions, and there have been occasional hotly contested elections, albeit not by the candidates themselves.(28) Both political parties agree that the ideological makeup of the court is crucial.(29) The press gives considerable coverage to the party conventions during the nominating process, and judicial candidates are identified by party affiliation throughout the election campaign.(30) Michigan has a reputation, dating back at least forty years, of being a highly partisan court. For example, Glendon A. Schubert found the Michigan high court sharply divided along party lines on the issue of worker's compensation claims, with Democratic justices far more supportive of workers' claims than their Republican counterparts.(31) Sidney S. Ulmer, corroborating Schubert's findings in a later study of the Michigan Supreme Court, found party line voting on employment compensation.(32)

   When, in 1998, the Democrats lost their long-held majority on the Michigan Supreme Court, partisanship apparently intensified with the election of a new five-to-two Republican majority.(33) In fact, approximately half of the forty-two opinions issued from January 1999 to July 1999 were unanimous.(34) Of the twenty-two non-unanimous decisions, thirteen were five-to-two votes with the Democrats in dissent.(35) In six of these twenty-two cases, a Republican moderate joined the Democrats in dissent, and in two more cases, the lone Democratic woman dissented.(36)

3. LITERATURE REVIEW

   1. Judicial Literature

      The judiciary has certain unique features that set it off from other, more political institutions. The boundaries of the judicial role are circumscribed in ways that the legislative role is not. Popular images of appropriate judicial behavior and formal socialization of future judges into role patterns by our legal education system operate to create a widely accepted set of criteria for judging judges. The official, approved image of a judge is that of a person who is "impartial, disengaged, and independent," who does not "pre-judge" the merits of a case before hearing the evidence presented by advocates for each side.(37) What this means in a nutshell is that a good judge is supposed to put aside his or her personal feelings and values when donning the robe. The robe and all its trappings are designed to hide individual physical characteristics, and in so doing, symbolically represent the impersonal nature of judging.(38)

      The formal rules of the judicial game re-enforce these basic role expectations. For example, the Code of Judicial Conduct prohibits a judge from engaging in acts that have an appearance of impropriety on or off the bench.(39) The majority of judges are selected by means other than "dirty" partisan politics;(40) cries of outrage were heard when it was rumored that Reagan administration officials had asked potential federal judicial nominees how they might decide future cases.(41)

      Role expectations, compounded by institutional forces, add another dimension to the elements conspiring to pressure judges to remain neutral, to leave out `isms,' such as feminism, from the process of judging. The law itself, statutes and precedents, the facts of the case, the requirements of evidence, the possibility of being over-turned on appeal, even the nature of the adversarial system, all restrict the freedom of judicial discretion.(42)

      Nevertheless, the act of adjudication is far from an exact science. A prime example of this is the use of precedent or stare decisis.(43) The notion of stare decisis is a defining characteristic of both common law and, at least on the surface, the American judicial system.(44) It also characterizes the nature of legal education and socialization in the United States. The study of law through appellate opinions exemplifies their value as precedents and their relationship to the traditional notions of legal thought and legal reasoning. When lawyers argue and judges decide matters of law or public policy, they do it in the language of past legal decisions.(45) Clearly, at least on the surface, the norm of stare decisis and rule of precedent characterize the institution Of law and the language of law used in the legal system of the United States. However, the question remains: Does it have a genuine effect on the behavior of judicial actors? The judicial realism movement of the 1920s and 1930s argues that judges are not machines who merely objectively process past legal cases and produce the correct decision based on precedent.(46) Legal reasoning is not an exact science; it relies on the discretion of a judicial actor to comply with existing precedent and apply precedent in the way earlier courts or courts higher in the judicial hierarchy intended.

      In its most formal and basic manifestation, stare decisis demands that judges compare the facts of a current case, in all their complexity, to the facts of past cases and, if the facts are the same or similar, apply the same legal reasoning and come to the same outcome.(47) In this formal manifestation of stare decisis, judges must digest and understand the legal reasoning of past courts and apply it in a highly rational manner to the facts of a particular case. The difficulty, and at times the impossibility, of applying what may be ambiguous precedent in a current case opens up the opportunity for discretion on the part of the judge. Once a judge has decision-making discretion, a...