Judicial Activism & Conservativism

Although the case can be presented in a much more compelling manner, today's Times editorial on "conservative" judicial activism brought to mind a recent decision of the Michigan Supreme Court. The editorial proposes,

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges "make" law, while conservative judges "interpret" it.

A modest proposal, then: Let's invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely "interpreting" the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by "liberal activist judges." And while I am open to better suggestions, here's a tentative offering: "Re-activist judges."

In Michigan, for a number of years we have had a "conservative" majority on the Supreme Court, which fashions itself in large part after the philosophies of Justice Scalia - to the point where the Chief Justice has publicly recommended Scalia's "A Matter of Interpretation" for guidance as to how the Court may rule. This "conservative" court has not been at all reticent about reversing precedents, no matter how old, which they deem to be inconsistent with legislative intent. (This, of course, raises the question of why the legislature would let stand a wholly wrong-headed interpretation of a statute for a decade or more, when they could remedy the "error" within the space of a single legislative session - as they have often done.)

This can remedy what many view as bad decisions, but it can also lead to general confusion. For example, for many years it was possible to bring a highway defect claim on the basis of defective or inadequate traffic signs or signals, but the Michigan Supreme Court opted to reverse a prior Supreme Court decision which had stood for ten years, and to hold that the legislature did not intend traffic controls or signs to be part of the "highway". That is not an unreasonable interpretation of the statute, but it is legitimate to observe that the legislature itself appeared untroubled by the prior interpretation, and that a typical lay reaction to being informed that traffic lights are not part of an intersection is an incredulous, "What are they, then?"

In its advancement of legislative intent, the Michigan Supreme Court recently held that judges could no longer interpret a statute so as to avoid an absurd outcome. This principle of construction is that where applying a statute as written creates a particularly absurd or unjust outcome, a court may interpret the statute to avoid the outcome. No more, in Michigan - even if the outcome that results was obviously not anticipated or not intended by the legislature when it drafted the language.

Needless to say, this has created some tension in the court. In another recent decision, in which the Supreme Court modified another long-standing interpretation of state law, there was an associated loss of decorum. The majority opined about the dissenting justices,

It must be pointed out that the dissent's approach leads to the rather dismaying conclusion that the intent of the Legislature in 1995 was, in effect, to pull down the no-fault temple and produce an auto insurance catastrophe for the state's drivers. That is, the dissent concludes that the 1995 amendment, despite no words to this effect, was designed, as the thrust of his argument makes clear, to undermine the great compromise (no-fault benefits in return for limited tort remedies) that all previous Supreme Court decisions have recognized as existing in the no-fault legislation and that is an indispensable requirement to make no-fault viable. We decline to join him in this calculated exercise predicated on what we believe is a studied ignorance of what the Legislature intended.

(emphasis added). The author of the dissent retorted,

The majority suggests that my approach is sacrilegious to the "no-fault temple" and is an exercise predicated on "studied ignorance." Ante at 35. While admittedly unaware that I was required to worship the no-fault insurance gods, I believe that my "studied ignorance" is more properly labeled as "judicial restraint." If ignorance comes from applying this unambiguous statute as written and not substituting my own view for that of the Legislature, I must say that ignorance is bliss. If so-called wisdom comes from rewriting this unambiguous statute to comport with my own preference on how the statute should be written and applied, in this instance I must choose "ignorance."

The fact is, reasonable minds can differ as to how statutory language is best interpreted. I don't believe it is a "studied ignorance" to suggest that one reasonable interpretation, which the legislature has long permitted to stand, somehow undermines the statute at issue. Nor do I believe that another interpretation, not unreasonable, dictates that those holding the opinion are sell-outs to the insurance industry.

I do believe that there is something to be said for respecting precedent, for respecting the capability of the legislature to correct mistakes of judicial interpretation on its own initiative, and for preserving comity and collegiality among the justices of the state's highest court. In the past, would not all three of those factors be deemed "conservative" in nature?