Enjoying my coffee on a Sunday morning and looking over the metro daily, the Grand Rapids Press. On page A13, under The Week in Review, is a segment called “They Said It; Last Week in Quotes” I found this:
“As an attorney, I can’t disagree with it and I can’t say I’m surprised. And, as a memer of the State Bar of Michigan, I’m embarrased.” –Traverse City attorney Tim Smith, as quoted by Public News Service, on a University of Chicago study saying Michigan’s Supreme Court is worst in the nation for judicial independence.
Hmm, I wondered, isn’t that somewhat familiar? Haven’t I read this some time ago? Certainly the issue of the Court’s independence and competence was brought up before the Nov. 2 election. Tim Smith said it…last week?
No. He said it two years ago.
I tracked it down; not hard to do. Here’s the news story surrounding the release of the report…and it’s from July 13, 2008, Tim Smith quote and all. Now, I know that news sometimes is a little slow getting our way, but this seems unlikely delayed, an aberration, perhaps a mistake. Or somebody at the Press has realized something; there are lots of good people at that paper.
But it gave me pause to go back and reread the study. You can read that 50-page analysis by Stephen J. Choi, Mitu Gulati, and Eric A. Posner here: WHICH STATES HAVE THE BEST (AND WORST) HIGH COURTS?
The three researchers gathered their own data relative to U.S. State Supreme Courts from 1998 through 2000. Those are years when 5/7ths of the current Michigan Court was sitting. (Justice Taylor was unelected in 2008 and Justice Weaver resigned in 2010.) Not only did they do their own study but they also compared their work to that of others, in particular two Chamber of Commerce studies. (I find those Chamber studies badly flawed; the studies survey attorneys and judges and that’s the measure of the high courts.)
Choi, Gulati, and Posner set out to meaure three things:
Productivity–they use as their criterion the numbers of opinions generated at each Court.
Influence–they use the numbers of out-of-state citations of opinions as a measure of the quality of the reasoning at the Courts.
Independence–they measured numbers of times Justices crossed party or other affiliations lines to side with opposite parties as a measure of “the judge’s ability to withstand partisan pressures, or disinclination to indulge partisan preferences, when deciding cases.”
So, how did Michigan do? Not well, not well at all.
Productivity? Michigan ranked 40th with 389. Georgia claimed the top spot with 1225; New Mexico the bottom with 151.
Influence? Michigan ranked 42nd with 8.67 out-of-state citations/year. Top was California with 33.67 and bottom was Oklahoma (criminal) with 3.69.
Independence? Michigan ranked 52nd. (Yes, I know there are only 50 states, but Washington, D.C., was not included and Oklahoma and Texas Civil and Criminal Courts were ranked separately to equal 52 units.) The rankings ranged from -1 to +1. The top was Rhode Island with 0.19. Michigan was -0.31. That means that partisan aggregation was prevelent, birds of a political feather, if you will, were sticking together.
Even combining all three measures Michigan was still on the bottom. California claimed to the pole position.
So, in one sense it’s good that the Grand Rapids Press was so dilatory in getting the news: it gave me a chance to think and write about it. (Yes, I realize that’s navel gazing; but this work on the Court is kind of new. So, mea culpa.)