Question 1): Michigan Supreme Court Chief Justice Elizabeth CLEMENT announced this past Wednesday that she will resign from the high bench by April 30. She has been named president of the National Center for State Courts (NCSC), a job that pays nearly twice that of a Michigan justice’s salary.
The NCSC is a Virginia-based non-profit focused on challenges and opportunities facing the courts in all 50 states.
Clement, who was appointed to be a justice in 2017 by Republican Gov. Rick SNYDER, was serving her first full term after winning election in 2018. The term to which she was elected ends Jan. 1, 2027.
Clement is the second straight chief justice to quit mid-term, following Democrat Bridget Mary McCormack, who resigned at the end of 2022 to become President and Chief Executive Officer of the American Arbitration Association, paving the way for Clement to succeed her.
Gov. Gretchen WHITMER’s appointment to replace Clement will shift the court’s 5-2 Democratic majority to a 6-1 majority, assuming Whitmer appoints another Democrat. That would leave Justice Brian ZAHRA as the lone Republican on Michigan’s highest court. Whitmer’s appointee must run in 2026 to retain the seat.
To replace McCormack, Whitmer appointed former state Rep. Kyra Harris Bolden, a Democrat from Pontiac.
So, what does this bode for future decisions by the Michigan Supreme Court? Are its rulings likely to be different from what a court might decree with a majority of justices who were appointed or elected as Republicans?
Answer 1): Elections have consequences, as they say, and for Michigan Republicans the world has turned upside down. Long gone is their ‘Golden Era’ when they dominated the Supreme Court for nearly two decades during the tenures of three governors, two of them Republicans (John Engler and Rick Snyder) and one Democrat (Jennifer Granholm).
But through problematic appointments by Snyder, feckless leadership from the state GOP and the resultant string of losing poorly-funded statewide judicial campaigns, Republicans frittered away what had been consistent 5-2 and 4-3 GOP majorities on the high bench to what is now likely to be an historic 6-1 Democratic majority.
Michigan Democrats have completely outfoxed and outspent their GOP adversaries to seize absolute control over what the court is likely to decide henceforth. Already, that has had ramifications, such as when a divided court ruled that the Republican-controlled Legislature in 2018 could NOT “adopt-and-amend” an initiated law on minimum wage and paid sick leave in the same two-year session. That led to the past week’s chaos in the 103rd Legislature. We can now expect rulings on combustible issues like Line 5 in the Straits of Mackinac that may put the court at odds with the Canadian and U.S. federal governments. Let’s see what happens.
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Question 2): For the past week, the news media has been awash in reports of the Michigan Legislature’s attempts to amend the court-ordered law on the state’s minimum wage and paid sick leave (see above) before it was supposed to go into effect Friday (Feb. 21). Let’s let Simon Schuster of MLive tell the story of what happened:
“The Michigan Legislature finalized an eleventh-hour deal to limit court-ordered wage increases and paid sick leave requirements late Thursday, the culmination of a seven-year fight over the policies in Michigan.
“The bipartisan compromise, approved roughly an hour before court-ordered laws were set to take effect Friday, will add flexibility to pending paid sick leave rules and delay implementation for small businesses until October.
“As part of the deal, rushed toward the governor’s desk for expected signature, the Democratic-led Senate also voted to immediately implement recently approved legislation to scale back a minimum wage increase for tipped workers.
“Republicans said the deal was imperfect but would avert disaster for businesses across the state — “the mark of a good compromise,” said Rep. Bill G. Schuette of Midland.
““It gets (workers) some paid sick leave, but it also allows businesses to know what the future is going to look like for them,” Schuette said after the final 81-29 vote in the House. “It’s going to allow them to budget and be sustainable over the next few years.”
However, One Fair Wage (OFW), the group that mobilized around eliminating the tipped wage for restaurant workers, immediately announced plans to challenge SB 8 , which restores the tipped wage, using the ballot referendum process.
OFW is hoping that, by gathering a minimum of 223,099 signatures within 90 days, the signed bill will be suspended and become a question on the next statewide ballot.
A statewide effort to gather signature collectors will recruit and train volunteers, educate voters on what the ballot question would do and engage the servers or workers affected by the policy changes. Yes, this can be done on a contentious issue — it was accomplished most recently in 2012, when voters quashed an enacted law that would have allowed the governor to appoint “an emergency manager to act in place of local government officials.”
So, now that Gov. Gretchen Whitmer has signed the legislation into law (just before Friday noon), who were the winners and losers in this imbroglio? And could a petition-initiated referendum upset the apple cart and negate everything that’s happened since the state Supreme Court’s edict last summer that OFW had been right all along?
Answer 2): The losers, at least for the time being, were obviously One Fair Wage and organized labor, both of which wanted the Legislature to NOT do anything and simply allow the original 2018 initiative petition language to go into effect.
The main winners in terms of what happened in the Legislature this past week were 1) The masterly public relations campaign by the Michigan hospitality industry, spearheaded by PR guru John Sellek, to spotlight the state’s beleaguered small businesses and tipped workers and keep incessant pressure on lawmakers; 2) Matt Hall, the new Republican Speaker of the state House of Representatives, who seemed to be most visibly directing traffic in both chambers and offering a key compromise that got the pertinent bills over the finish line; and 3) Majority Senate Democrats, who read the tea leaves and were willing to alter their original position (despite heavy opposition from organized labor) and come up with the requisite votes to not only pass the bills but to give them immediate effect.
Does this mean that Happy Days are here at last and that Democrats ad Republicans have shown they can work together and reach compromise on major issues as it is alleged they did in the past? Not at all. It could prove to be a ‘one-off,’ but at least there is hope that the consensus that has eluded Democrats and Republicans, the House and the Senate, for the past six years can be reached on something as big as “Fix the Damn Roads” and other major challenges in 2025-26.
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OFW has a point. We had a ballot initiative that the Republicans tried to overturn. The courts said the Republicans had undermined the will of the voters and that the ballot verbiage should be implemented. Now, at the last minute, the Legislature and the Governor have amended the ballot language and said the will of the voters should be damned. Let’s hope the Supreme Court, with or without Clement, once again finds that the voters are the last word on issues that they put on the ballot.
The “will of the voters” overstates the reality. Thanks to the 2018 GOP the voters never weighed in. It’s the “will of the petitioners.”
It is very interesting that a “National Center for State Courts” gets two-thirds of its revenues from the federal government and the rest from an NPR blogroll of left wing foundations, including George Soros’ Open Society Foundations.
But Clement got a pay hike. Maybe not as much as McCormick or Mallet, but still a pay hike. Methinks that is the chief reason she jumped ship. Not that I’m cynical…..
quid pro dough, judicial style. Why we cannot have nice things, like a clean government.
Nice article, Bill.
QUESTION 1: Ah, Michigan politics. Very few dull and boring moments. By the way, my money (from a Monopoly game) is on Sima Patel. Whitmer wants a promotion and elevating the state’s first Indo-American to SCOMI (yes, I am still trying to get this acronym accepted) is a good way to build favor for herself with a community that is becoming more political and has begun to look favorably towards the GOP with Kash Patel at FBI and JD Vance’s wife. And let’s face it, Patel’s CV is a whole lot more impressive than Bolden’s. Or Welch’s.
As for SCOMI, you’re spot on as to how the GOP lost their majority. Way back when I had a full head of hair and no gray, John Engler moved with significant intensity and determination to regain control of the Supreme Court for the GOP that they lost in the 1970 election. Took him a while, but he succeeded. Rick Snyder flushed that down the toilet as you quite clearly stated (there is a reason why segments of the GOP do not look fondly on his reign of error). If they want to regain it, they’re looking at a decade’s worth of work that will require nearly flawless performance. This, of course, is not something we should expect from the MIGOP, or any political party for that matter.
But if the MIGOP wants to, they need to do what the Democrats do. The Democrats identify their candidates early and effectively “nominate” them usually a year or so ahead 0f the election so they can begin fundraising. We usually know at least one year ahead of time. And yes, money helps. Their Convention rubber stamps them – though the Convention did embarrass/humiliate Bill Murphy a few years ago (something he did NOT deserve). But the GOP faithful most likely will not play along. They had a large fight over their last nominees as the comments in TBR noted. They just rejected Trump’s pick for Chair in favor of State Senator Runestad. Runestad says he can raise money. And he will need to raise a bunch. And more. Maybe Speaker Hall has given him a leg up on this. For the MIGOP, there are a series of questions that they need to have answers for:
1. Will the donor class, which has sat on their collective wallets for the most part during the Time of Trump, open them up this cycle?
2. Will they keep the wallets closed until Trump is gone or at the very least ‘identify’ judicial nominees they will fund and wait for the GOP Convention ‘acceptance’ of their offer?
3. Or has the donor class gone over to the other side? Or at least as long as there are corporate Democrats on the Court.
I have no idea, but we will see how this plays out in future TBRs!
QUESTION 2: Mr. Schuster gave an excellent synopsis. And you’re right on the winners of this issue. Gov. Whitmer wants a promotion, and she is in competition with others – Jared Polis of Colorado, Josh Shapiro of Pennsylvania, Gavin Newsom of California, and even Tim Walz of Minnesota, governors all. To compete, they are trying to appear bipartisan in their work. And if it means screwing organized labor, I remember hearing about needing to break eggs to make an omelet.
But for my brethren in the labor movement, we need to look at question #1 and the ballot box. SCOMI may come to the rescue, but at times they are as feckless as the MIGOP. Labor won in round 1 with SCOMI, sort of. What SCOMI should have done – having decided the legislature could not do what they did – is send it back to the voters. Their first decision was a wee bit incoherent, so much so that AG Nessel asked for clarification. But sending to the voters, then labor and those in the business community opposed to it, would have to fight for it at the ballot box. And labor will have to remember those in the state legislature who voted for it. Time will tell.
As for more bipartisanship, I suspect we should not hold out collective breaths. Film at 11.
Instead of “SCOMI”, I usually see the “MSC” abbreviation used to denote the Michigan Supreme Court.
Extending your logic, the Utah Supreme Court could be dubbed “SCOUT” as an acronym, so you may really be onto something.
…..or perhaps MISC might be a better acronym; so as not to confuse the U.P. & L.P. with other states beginning with M.
One point everyone seems to be missing is that Beth Clement – although appointed by a GOP governor – was never a conservative and a moderate at best who often sided with the Democrats on the Michigan Supreme Court. Conservative activists disliked her.
The Dems were rightfully indignant for the years ultraconservative jurists held sway on the Michigan Supreme Court and issued ridiculous extreme rulings that gutted the rights of auto accident victims, slip-and-fall litigants, and workers’ compensation claimants. Remember the “Taylor-Markman-Young” campaign ad Dems issued that was a take-off on the “Lions-Tigers-and-Bears” quote from the Wizard of Oz?
And the even funnier and classic “Sleeping Judge” campaign ad that likened Michigan Supreme Court Justice Clifford Taylor to Sleeping Beauty. The result in 2008 was that Taylor became the first Michigan Supreme Court Chief Justice to be voted out of office when Wayne County Circuit Court Judge Diane Hathaway, the Dem nominee, upset him. Also dooming Taylor was a large chunk of outstate voters disliked his stance on gun control.
Many of the judicial races were heavily-funded by pro-insurance political action committees at the Circuit Court , Michigan Court of Appeals and Michigan Supreme Court levels. The recipients often were perceived to have owed a big favor to donors who represented the insurance industry…………..and their rulings often reinforced those perceptions of bias.
The politically-powerful Plaintiffs’ bar got together and began getting Governors Granholm and Whitmer to appoint Plaintiff-friendly jurists to the Michigan state court bench – enter ladies such as Sima Patel.
The pendulum is now swinging in favor of moderate and liberal jurists filling Michigan Supreme Court and Michigan Court of Appeals vacancies. The public is supporting these prospective judges as more aligned with the public interest. Judge O’Grady is a former MSP trooper – does he represent the “man on the street” – NO! He lost his race as a GOP appointee to a Dem appointee for the MSC vacancy in 2022.
Shades of David Souter! Too bad the GOP’s concept of vetting consists only of driving a popular GM sports car down Woodward Ave.
There was NO vetting with Beth Clement – she worked directly for Rick Snyder as his Legal Counsel in the Office of Governor.
Snyder was never a true conservative. He was from Ann Arbor and was pro-business but socially moderate.
Much like the saga of G.W.(S.O.)B., who initially picked Harriet Miers for SCOTUS. Can you imagine what a disaster THAT would have been? Good thing he was persuaded to abandon his folly; and even better Samuel Alito ended up on SCOTUS.
Like the Godfather, Snyder picked his own Tom Hagen for the bench. There’s a reason he won re-election by only 4% against a Democrat most of the Democrat’s voters had a hard time remembering let alone spelling is name.
Just FYI, Justices Markman, Taylor and Young all won reelection in 2000, in part because of their increased name ID from the ad campaign by the Democratic Party.
And Justice Taylor’s loss in 2008 was actually the second time an incumbent Justice had lost an election to the Supreme Court. Dorthy Comstock Riley defeated Justice Thomas Kavanaugh in 1984.
Michigan Supreme Court Justice Lawrence Lindemer also lost his seat as an incumbent in a judicial election. He was beaten by Blair Moody.
However, Clifford Taylor holds the dubious distinction of THE ONLY CHIEF JUSTICE incumbent not winning a re-election bid for the state supreme court in this state.