Michigan Supreme Court Justice Dissents from the Re-Election of a Chief Justice:

This remarkable document is now posted here. I didn't even know that it was possible for a judge to file such a written dissent, until Howard Bashman (How Appealing) posted about it, but I guess it is.

The Chief Justice of the U.S. Supreme Court, of course, is specially appointed as Chief by the President; some states similarly treat the Chiefship as a specially appointed or elected position; other states and (all?) federal circuits, I'm told, generally have the office rotate by a combination of seniority and age. But some states, including Michigan, have the Chief be elected by the Justices themselves.

I'm so embarrassed to be a Michigan lawyer.
1.8.2007 6:12pm
Silicon Valley Jim:
This seems to be a re-election. The Michigan Supreme Court's website says that he was elected Chief Justice in 2005.
1.8.2007 6:21pm
John (mail):
This is absolutely astonishing.

I've read Justice Weaver's memo, and the dissent of hers that she cites to. She has an irritating habit of putting numerals in parentheses whenever she writes out a number (you know, to make it legal), and her main gripe seems to be with the court's 4-3 adoption of an order to keep chambers matters confidential:

"All correspondence, memoranda and discussions regarding cases or controversies are confidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC or proper authority."

I must say that on its face this "gag order," as Weaver calls it, seems pretty reasonable, though I guess you could argue the other way, but the majority apparently used it to bar publication of her dissent in some case where, I guess, she discussed things that happened in chambers. This has really steamed her (though the court did change its mind and let the dissent be published).

Anyway, there is obviously a pretty strong split between Justices Taylor (CJ), Corrigan, Young and Markman on the one hand, and Justices Weaver, Cavanagh and Kelly on the other.

My question for the Michigan VCers out there: how are these justices regarded in terms of legal ability, or sound judging?
1.8.2007 6:28pm
Henri LeCompte (mail):
Any questions now about why some of us are wary of a society controlled by judges?

Any argument with the notion that judges are just as prone as the rest of us to place their own personal "preferences" above all other considerations? Even above the common good, or the best interests of the Law?
1.8.2007 6:28pm
Crunchy Frog:
Wow. I've seen more dignified behavior in a 6th grade class presidential election. Speaks volumes for Michigan jurisprudence.
1.8.2007 6:32pm
Stopping By:

I'm a Mich VCer. I don't know enough about the Mich. justices legal ability/sound judging, but Taylor, Corrigan, Young, and Markman have a reputation of being conservative and/or Federalist Society-inclined philosophically; with the other 3 judges being not so much.
1.8.2007 6:34pm
Stopping By:
Oh, I should add that I have heard very good things about Corrigan's legal abilities, intelligence, and judicial temparament. Her name was bandied about as a possible US Sup Ct nominee instead of Harriet Miers.
1.8.2007 6:37pm
GK in DC:
The irony is a bit thick. The author, Justice Weaver, has posted "10 Principles for Living" on her website. These principles include "Avoid Unnecessary Disputes and Confrontations" (6), "Don't Let the Turkeys Get You Down" (5), and "You Catch More Bees With Honey Than Vinegar" (4).
1.8.2007 6:41pm
Thorley Winston (mail) (www):

The Chief Justice of the U.S. Supreme Court, of course, is specially appointed as Chief by the President;

Shouldn't that be "the Chief Justice of the United States"?
1.8.2007 6:43pm
Thorley Winston (mail) (www):
Looks like someone was tracking changes on the document and forgot to hit “accept changes” either before printing off a hard copy for signing or before scanning it into PDF format.
1.8.2007 6:54pm
Eugene Volokh (www):
Silicon Valley Jim: Indeed, it is a re-election; I hadn't thought it worth mentioned, but now that you brought it up, I reconsidered and revised the post accordingly. Thanks!
1.8.2007 7:13pm
Eugene Volokh (www):
Thorley Winston: Asked and answered, here.
1.8.2007 7:15pm
Ms Weaver's writing style is rather abrasive. For more of her sharp penswomanship, read the opinion referenced in her memo, Grievance Adm'r v. Fieger 719 N.W.2d 123. Scary stuff.
1.8.2007 7:24pm
My goodness. The Michigan Supreme Court has been a trainwreck for as long as I can remember.

If you read nothing else in this document, don't miss page 11. Yowza.
1.8.2007 7:52pm
I'm not a lawyer, and I don't favor reverse-engineered opinions, but the Michigan Supreme Court issues a lot of high-profile opinions that I agree with as a matter of policy (I'm usually ignorant of the legal merits).

I know not every commenter here is a libertarian, but I would think that most people here think the Michigan Supreme Court is doing God's work (or at least Ayn Rand's).
1.8.2007 8:26pm
The conflict on the Mich. Sup Ct between the 4 on one side and the 3 on the other is quite prominent, and they've clashed many times in the past.

My impression is that the legal ability and jurisprudence of the "conservatives" Corrigan, Markman, Young, and Taylor is very sound; and that J. Weaver is a little wacky.

(Full Disclosure: I'm a member of the Mich. Federalist Society.)
1.8.2007 8:53pm
Respondent (mail):
Anyone know why Judge Easterbrook is now the chief judge of the 7th circuit as opposed to Judge Posner?
1.8.2007 9:23pm
Respondent: Federal chief judgeships rotate based on seniority, and once a judge has served one seven-year term as chief, he or she is no longer eligible for the position. Posner has already served his one term for the 7th.
1.8.2007 9:59pm
From Wikipedia, for any other federal judiciary dorks besides me who are interested in how the chief judge position is assigned:

In order to qualify for the office of Chief Judge, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as Chief Judge. A vacancy in the office of Chief Judge is filled by the judge highest in seniority among the group of qualified judges. The Chief Judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position. Unlike the Chief Justice of the United States, a Chief Judge returns to active service after the expiration of his or her term and does not create a vacancy on the bench by the fact of his or her promotion. See 28 U.S.C. § 45.
1.8.2007 10:06pm
??? (mail):
A supreme court justice wrote that? It reads like a high school book report.
1.8.2007 11:04pm
tbaugh (mail):
Deny it as she will, all this stems from the fact that the traditional practice is that the chief justice serves 2 2-year terms (unless the balance of power shifts), but though she was in the "republican" majority that majority did not re-elect Weaver to a second term as chief justice, and she has been out to get them ever since (and her abrasive style someone mentioned was part of the reason it was decided she shouldn't serve any longer as chief justice). I have never heard of a justice threatening to (and actually revealing) internal memos and conference discussions (at least not until they are dead; some US Supreme Court justices conferences notes etc. have been available then). But if the justices can't count on internal memos and discussions being confidential, how can they conduct their conferences and exchange drafts of opinions with the justice who may go public with memos, drafts, and discussions? It's just unheard of and beneath the dignity of a justice. It's a shame Weaver has come to this. And I don't even know how one "dissents" from selection of the chief justice. As far as I know no order is entered, they just vote on this internal matter and announce who was chosen. Weaver's dissent is actually like a "counter press release," not an actual "dissent," and if she had anything other than pesonal motives she wouldn't have issued it.

The "four" are extremely sound textualists/orginalists, especially Corrigan and Young.
1.8.2007 11:15pm
eric (mail):
Michigan lawyers need not feel that they are alone. In Oklahoma, a justice has sued in federal court for the right to be Chief Justice. See Opala v. Watt, 454 F.3d 1154 (10th Cir. 2006).
1.8.2007 11:49pm
Public_Defender (mail):
Two basic rules of appellate judging--the majority wins, but the minority gets to issue a dissent criticizing the majority. It seems like Weaver is upset that she's in the minority, but the majority doesn't seem to want to let her have her say in dissents.

Further, if internal deliberations are relevant to a procedural point, then the dissent should be allowed to explain those. The majority should be happy that it's the majority and confident enough that its actions will survive public scrutiny.

Justice Weaver correctly points out that the Michigan constitution expressly gives her the duty (not just the right) to explain the reasons for her dissent. If her dissent is based on the actions of her colleagues, why can't she put that in her constituionally mandated dissenting opinion?

I also don't remember conservatives complaining when conservative Sixth Circuit judges wrote blistering dissents about their less conservative colleagues on the bench.

Time should be no concern. It looks like the conservative Michigan majority push for tight deadlines on dissents. that may account for the rushed nature of the memo in this case. But there should be no rush on dissents. It doesn't happen every day, but from time to time, I see dissents issued long after a majority opinion.

When these disputes arise, Chief Justice Taylor and his three conservative colleagues should make their decision, let Weaver have her dissent, and move on.
1.9.2007 5:29am
michlaw (mail):
The current imbroglio does indeed arise from two decisions in the Grievance Administrator v. Fieger case, one issued in July 2006 and one order issued in December. In both opinions, Justice Weaver issued lengthy dissents in support of her argument that the current system for responding to claims of judicial bias should be changed. Under the current system, if such a claim is raised about Justice A, it is Justice A and Justice A alone who decides whether the recusal motion should be granted. I think that she has a point, don't you?

But take a step back and survey several prominent decisions from that court in the last three years. Vituperative argument and downright nastiness seems to have become the normal mode of discourse on the Michigan Supreme Court.
1.9.2007 7:44am
BobVDV (mail):
I just love the line Weaver quotes from Chief Justice Taylor's draft concurrence: "in fact, ever the conciliator, I even suggested Justice Weaver use a hunger strike as a vehicle as it seemed to have the potential for everyone to be a winner".
1.9.2007 9:04am
Ubertrout (mail) (www):
Justice Weaver's memo is not particularly sympathetic. But I have to admit that the Chief Justice's opinion quoted on page 11 is pretty appalling given his station, even if funny in a nasty way.
1.9.2007 11:28am
Sebastian Holsclaw (mail):
Is this the same Judge Taylor that twice tampered with the Michigan Affirmative Action cases?

I believe Judge Taylor initially attempted to yank the case from its randomly assigned judge and then on appeal suppressed the normal procedure for reviewing the case so that it would be delayed until after 2 conservative judges had transitioned to 'senior' status and would not be eligible to review the case.

Sounds shady to me.
1.9.2007 1:17pm
Sebastian Holsclaw (mail):
See for example here on the judicial manipulation used in the affirmative action cases.
1.9.2007 1:19pm
Sebastian Holsclaw (mail):
Correction, Taylor was involved in the initial reassignment attempt, I'm not sure of her involvement in the illegtimate tampering with the panel later.
1.9.2007 1:21pm
markm (mail):
I think Justice Weaver has amply demonstrated why her colleagues didn't want her to continue as Chief Justice. She may (or may not) be a great legal scholar, but the CJ has administrative responsibilities that can't be performed well by someone who has trouble getting along with people...
1.9.2007 1:35pm
tbaugh (mail):

Wrong Taylor; you're talking about Anna Diggs Taylor, federal judge. This is Chief Justice Clifford Taylor, of the Michigan Supreme Court.
1.9.2007 2:51pm
andy (mail) (www):
I used to think that it was a bad thing that clerks wrote most judicial opinions, but if this is the quality of a Justice's writing, then clerks need more involvement, not less.
1.9.2007 6:59pm
She may (or may not) be a great legal scholar, but the CJ has administrative responsibilities that can't be performed well by someone who has trouble getting along with people...

Arguably, the guy who suggested in a written memo that she could benefit from a hunger strike doesn't have the greatest people skills either.
1.9.2007 10:07pm
markm (mail):
At least neither one is quite as bad as Judge Judy.
1.10.2007 11:56am
Bryan DB:
"But if the justices can't count on internal memos and discussions being confidential, how can they conduct their conferences and exchange drafts of opinions with the justice who may go public with memos, drafts, and discussions?"

If the justices are basing their opinions on the merits and on sound legal reasoning, I don't know why public scrutiny should be a problem. If they're basing their opinions on personal bias or animus, and trying to cloak it in something respectable, then I can see why they might be troubled.
1.10.2007 1:27pm
tbaugh (mail):
I'd like to see an appellate court in the country where drafts of opinions, internal memos, and/or conference discussions are viewed as appropriate material in opinion writing (majorities, concurrences, or dissents).
1.11.2007 10:30am