Cross-posted at BloggingForMichigan.com
In May of this year, Stephen Choi, Mitu Gulati, and Eric Posner of the University of Chicago Law School attempted to answer the question, Which States Have the Best (and Worst) High Courts?". These researchers weren't, to borrow a phrase from the late George Wallace, "pointy-headed perfessers." In fact, their study was part of the work of the John M. Olin Program in Law & Economics. Chicago's Law & Economics program is known for its conservative and libertarian legal philosophy, and the John M. Olin Foundation is a well-known bankroller of what David Brock called the Republican Noise Machine...
The Chicago researchers aren't the first to take a stab at rating state's high courts. (Perhaps the best-known ratings come from the U.S. Chamber of Commerce, which makes little effort to hide its distaste for trial lawyers and for judges who side with plaintiffs in civil cases.) Choi and his colleagues admit that their ratings are not perfect but the alternative, they point out, is no ratings at all and no standard by which to measure the performance of state courts.
Choi and his associates derived their ratings using three criteria. The first is productivity, the number of opinions a judge publishes in a year. Published opinions force a judge to explain his or her reasoning to the parties to the case and to other judges and lawyers who might face a similar dispute. The second is quality of opinions, measured by how many out-of-state courts cited an opinion of that court in support of their decisions in other cases. The higher the quality of an opinion, the more likely it is to be useful to other courts and thus more likely to be cited. The final criterion is the independence of justices A justice who is independent is less likely to vote as a bloc with others who share his or her legal and political philosophy.
There are 52 state courts of last resort in America (Texas and Oklahoma have separate high courts for civil and criminal cases). The Supreme Court of Michigan ranked 40th in productivity. It handed down an average of 16.2 opinions per justice per year, compared to 58.3 for the top-ranked supreme court, Georgia. Our highest court ranked 42nd in quality of opinions. Its opinions were cited only one-fourth as often as those from number-one state supreme court, California. Finally, our highest court ranked 52nd in independence, with a minus-0.31 rating. In other words, its justices were more likely to vote as a bloc than those of any other top court--and by a considerable margin even compared to the next least-independent court, the Supreme Court of Indiana.
Using an equal weight composite ranking of the three criteria, the Supreme Court of Michigan finished--drum roll, please--dead last, well behind the second-worst court, the Oklahoma Court of Criminal Appeals.
The Chicago researchers didn't delve into the politics of the Michigan Supreme Court, but they're hardly a secret and relevant as hell. Six of the seven justices joined the court during John Engler's 12 years as governor. Engler appointed Chief Justice Clifford Taylor to the court in 1997 and Justice Steven Markman in 1999; and he also appointed Justices Robert Young and Maura Corrigan to the Court of Appeals, the state's second-highest court. Taylor, Markman, Young, and Corrigan are the "Federalist Four," justices who have ties to The Federalist Society for Law and Public Policy Studies which functions as a right-wing farm system for the federal courts and, increasingly, the state courts.
According to SourceWatch.com, "Memorable Members" of the Federalist Society include Kenneth Starr, who made headlines ten years ago with his Inspector Javert-like pursuit of President Bill Clinton; and John Roberts, the Chief Justice of the U.S. Supreme Court. The society's board of visitors includes Robert Bork, whose views were so extreme that the U.S. Senate voted down his nomination to the Supreme Court during the Reagan years. Others on the board include Senator Orrin Hatch (R-Utah); former Reagan Attorney General Ed Meese; and Reagan administration retreads C. Boyden Gray, Donald Hodel, and William Bradford Reynolds. Mainstream legal minds, they are not.
Back to the Federalist Four. In March of this year, the University of Michigan Law School chapter of the Federalist Society hosted a national law student conference. The Summer 2008 edition of the law school magazine Law Quadrangle Notes (pdf, 108 pages), ran several stories about that conference, beginning on Page 76. One of those stories was entitled "State Supreme Court majority votes for 'The People and the Courts.'" It noted, "Four of the court's seven justices-Chief Justice Clifford W. Taylor and Justices Maura D. Corrigan, Stephen J. Markman, and Robert P. Young Jr.-were speakers or panel discussion moderators." There's even a photo from the conference of a smiling Federalist Four. It's on the lower right-hand of Page 77.
The Federalist Four are not exactly known for their judicial independence, and haven't distinguished themselves among the lawyers who practice before the Michigan Supreme Court. Earlier this year, Michigan Lawyers Weekly asked lawyers to rate the court's top justice. The results appear to be behind the MLW's subscription wall, but the attorney Michael Butler's blog has the figures: Justice Michael Cavanagh leads with 45%, followed by Justice Marilyn Kelly at 43%. Justice Elizabeth Weaver is third, at 6%. What about the Federalist Four? Justices Maura Corrigan and Stephen Markman each received 2%, and Justice Robert Young and Chief Justice Clifford Taylor tied for last place with 1%. Butler goes on to comment:
Some might respond to the poll results by saying that the majority of four...are unpopular among practitioners, because they are putting Michigan's legal house in order, at long last, and lazy and comfortable lawyers don't like it. Well, if we look at the new legal landscape established during the Reign of Taylor, where admittedly negligent business owners are not responsible to injured customers (Lugo, et al), where drunk drivers are not responsible to injured motorists (Gagne, et al), where the children and incapacitated, without the legal capacity to sue are held to the same legal standards as fully functioning adults (Cameron, Devillers, et al), we find Michigan's legal house in disarray.
Butler adds that "It is time for an extreme makeover" of the court. It can't start a moment too soon.