Breaking: Michigan Supreme Court, on 4-3 Vote, Allows on Ballot Voter Initiative to Take Redistricting Away from Michigan Legislature

You can find the 121 pages of opinions, which did not split simply by party lines, at this link.

(Michael Li: Opinion is by Justice Vivano who is a Republican appointed by Gov. Rick Snyder. Justice Clement, another Republican Synder appointee joins him and the two Democratic justices in the majority.)

Voters will now get to decide whether or not to adopt redistricting reform before the 2020 redistricting round.

Chief Justice Stephen Markman, for three Justices, dissented. Footnote 63 of the majority opinion quotes Justice Markman’s language against him:

The Chief Justice’s dissent does not engage in a textual analysis of our Constitution—it does not, for example, directly examine the meanings of the relevant terms, but rather looks to what a few cases have said, generally, about those terms. However, “a judge must remember ‘above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.’ ” Markman, On Interpretation and Non-Interpretation, 3 Benchmark 219, 220 (1987), quoting Douglas, Stare Decisis, 49 Colum L Rev 735, 736 (1949); see also Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 561 n 4; 737 NW2d 476 (2007) (recognizing that “the actual language of the proposed constitution constitutes the best evidence of the ‘common understanding’ ” of the ratifiers).

Even so, we believe the Chief Justice’s dissent engages in revisionist legal history when it asserts that our precedents in this area have established “longstanding standards” on this point that are “consistent and compatible with each other, as well as with what is required by our Constitution . . . .” Post at 12. Indeed, the opinion labors to give its rule some provenance by repeatedly citing the age of the cases he relies upon, rather than focusing on their content. See post at 11 (“[F]or at least the past 85 years in Michigan, governing law concerning direct constitutional change has been characterized by the following . . . .”); post at 16 (“[O]ur Court would recognize, as [it has] for the past 85 years . . . .”); post at 17 (referring to “the standard set forth by our precedents over 85 years ago”); post at 18 (referring to “the standard set forth by our precedents over the course of 85 years”). And, for good measure, the dissent accuses the majority of altering these longstanding standards. But if the standard set forth in Laing and Pontiac Sch Dist and the Court of Appeals decisions in Citizens and Protect Our Jobs was so clear and longstanding on this point, one wonders why this Court refused to adopt it in 2008 in Citizens, instead issuing a highly unusual order leaving this area of law in a state of limbo. In any event, as already mentioned, Laing and Pontiac Sch Dist did not review the text of the Constitution or purport to establish any constitutional standard at all on this point. In light of this, it would be euphemistic to say that these cases have created a judicial gloss supporting the dissent’s reasoning—instead, they appear to us more like a spray-on tan.

If it is bad to depart from the plain language of our Constitution on the basis of a judicial gloss that is binding precedent, how much worse it must be to do so on the basis of the spotty and inapposite authority the dissent relies upon in this case. Cf. Markman, Resisting the Ratchet, 31 Harv J L & Pub Pol’y 983, 985 (2008) (“[T]o read the law consistently with its language, rather than with its judicial gloss, is not to be ‘harsh’ or ‘crabbed’ or ‘Dickensian,’ but is to give the people at least a fighting chance to comprehend the rules by which they are governed.”). Repeatedly calling these cases the “best and most authoritative and most consistent” precedents of this Court, post at 9 n 2, the “most compelling precedents of this state,” post at 9 n 2, and the “best and the most enduring relevant precedents of this state,” post at 19 n 9, does not make them so, even if with the use of italics.



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