Nate Smith-Tyge (@smithtyge):
As Nick has taken to writing about education policy of late, I thought I'd take a stab at writing a post on his favorite topic - the legal system. And specifically, the sad state of affairs at the Michigan Supreme Court. We have know since John Engler was able to use appointments and strong-arm tactics to secure a Republican majority on the Court in the early 1990s that the Michigan Supreme Court (and thus the entire state legal system) has become one of the most conservative in the nation. If you are an individual suing a corporation or insurance company for failing to act responsibly or abide by the terms of the agreement you entered into with them - good luck winning. Oh you might win in Circuit Court and heck if you get the right draw of judges you might win at the Court of Appeals but every corporate and insurance attorney knows the MSC is in their back pocket. This has created a lopsided balance in Michigan's legal system and despite what Geoffrey Fieger's TV ads might say the little guy doesn't have much of a chance in Michigan's legal system as it's currently comprised (and just in case you were wondering about all the TV commercials for trial attorneys, they're all basically big settlement factories - civil jury trials have basically gone the way of the dodo in Michigan).
This legal environment was why Democrats and progressives were so happy when for a brief few months in 2010 there was a 4-3 Democratic majority on the Court. But alas, Justice Alton Davis lost his bid for a full-term in the 2010 election to Mary Beth Kelly and Justices Mike Cavanagh and Marilyn Kelly have "aged off" the court (in Michigan an incumbent judge cannot seek reelection once they have passed the age of 70) and of course our former Justice Diane Hathaway has just finished serving time in Federal Prison after committing mortgage fraud. In 2012 Democrats replaced Justice Marilyn Kelly with Justice Bridget Mary McCormack but lost the other two Court seats, one of those seats was to fill the remainder of Justice Hathaway's term and Snyder appointee Justice Brian Zahra won the race to complete the term he was appointed to. In 2014 Democrats were able to replace Justice Cavanagh with Justice Richard Bernstein but again lost the other seat. The result is a 5-2 Republican Majority on the Court and more of the same "corporate justice" we've been enjoying since the 1990s.
Okay, so you're probably saying: yes, yes we know all of this, why tell us something we already know? Well, dear readers I want to let you know that we really only have one actual forward thinking and fair-minded Justice on the Court. You see we were all sold of a bill of goods about Justice McCormack. We were told the former UM Law Professor was a champion of justice and would fight for fairness and uphold equal treatment for all in our courts. But unfortunately, it seems that Justice McCormack is more aligned with the Republicans on the Court than the Democrats that voted for her and elected her to the Court.
Take as just one example the case of William Beals, a 19-year-old autistic student, drowned in a swimming pool at the Michigan Career and Technical Institute, a state residential facility that provides education for students with disabilities. Beals's mother, as personal representative of his estate, sued the State of Michigan and the lifeguard (a state employee) for negligence. The lifeguard was not paying attention to the swimmers at the time of Beals's drowning; instead, he was flirting with girls and playing with a football. The lifeguard never responded to Beals's drowning, even after other swimmers called for his help. The Michigan Supreme Court has just ruled, in a 6-to-1 decision by Justice Brian Zahra, that the lifeguard is absolutely immune from liability because even though no one knows what actually caused Beals to drown, the "unknown" and "unidentified" cause of his drowning was "the one most immediate, efficient, and direct cause” of his drowning. How much sense does that make? Once again, whether you're the state or a large corporation you are safe to assume the Court has your back and the individual has no chance for justice.
Justice Bridget McCormack signed the opinion without adding one word of her own. Only Justice Richard Bernstein dissented. If you're still laboring under the misapprehension that Bridget McCormack is a liberal, you might want to think again. Democrats who voted for McCormack in 2012 wasted their votes. She has consistently signed the conservative justices' opinions since joining the Court. It's one thing for her to be friends with her fellow Justices and post Facebook pictures hamming it up with them, it's another when she votes with them and turns her back on the voters who nominated and elected her to office. I realize this won't be popular and I might even lose a few supporters and readers over it, but if we don't speak truth to power and challenge our own to live up to their promises - who will?