Politics
10:08 am
Thu March 31, 2011

Is the State Supreme Court a flip-flopper?

Politicians don’t like to flip flop. Going back on what they said before can be a big political headache. 

The U.S. Supreme Court also takes flip flopping very seriously. The last time they overturned a decision was in 2003.

By comparison, the Michigan Supreme Court has flip-flopped a lot. Somewhere around thirty-eight times in the past decade.

All this flip flopping means that court keeps changing the law. One reason for the flip flops is because the judges on the court keep changing. Between elections and appointments there can be a lot of turnover on the bench. And new judges don’t necessarily agree with those who came before them.

Robert Sedler is a court watcher who says ideology is causing the back and forth on the Court. And he says things got bad about a decade ago. He teaches law at Wayne State University Law School.

"Around 1998 there were a series of appointments by former Governor Engler who were very ideological in their views. The majority took the position that, if they believed  cases were wrongly decided, they were going to overrule those cases."

Conservative majorities, like the one appointed by Engler, aren’t the only ones overturning old decisions. In 2010 there was a more moderate court, and they also overturned cases.

Take marajuana, for example. In 2006 the court saw all marijuana use the same, it was illegal. Four years later the new court saw more nuance and interpreted the law in ways that impacts medical marijuana use.

That court also took another look at car accident victims ability to sue auto insurers.

Under an older court it was very difficult to get pain and suffering awards in even the worst accidents. The new court overturned that decision and made it easier to for victims to sue.

Nick Schroeck is the Director of the Great Lakes Environmental Law Center. He says whomever is responsible for the back and forth isn’t important. It just makes the court look bad.

"The ideology and sort of the back and forth on political type issues isn't good for overall public confidence in the court. I think we expect a more collegial and deliberative body reviewing our laws."

Schroeck has a stake in the back and forth. Last year, his law center was involved in trying to convince the court to let ordinary citizens sue the state for polluting under the Michigan Environmental Protection Act.

The court said they could sue. But this victory for the environmentalists could be short-lived.

Since the November election there are new judges on the court, and a new attorney general. The Attorney General recently asked the court to take another look at this controversial decision.

Robert Young is the Chief Justice of the Court. He says the court is not political. They overturn their own decisions, but it’s to make the law more clear over time.

"Our view was, there should only be one rule at the end of the day. After we've hit an area there should only be one rule, to promote clarity in the law. That was one part of the phenomenon"

He also says the court overturned decisions when it thought earlier judges had overstepped their bounds. But that’s another way of saying that they didn’t agree.

There are those that blame the courts actions on the fact that Michigan’s Supreme Court judges are elected. Chief Justice Young says doing away with elections wouldn’t change the way the court works.

"If you see the court as a change agent you get one set of outcomes. If you have a more limited view of the courts constitutional authority, as I do, you’re likely to get different outcomes. Now, no matter how you select judges that’s an issue."

Whether or not the current state Supreme Court can have their differences and  break the flip flop pattern, court watchers will just have to wait and see.

Michigan Radio Newsroom-Sarah Alvarez