Resisting the Ratchet

By Markman, Stephen J. | Harvard Journal of Law & Public Policy, Summer 2008 | Go to article overview

Resisting the Ratchet


Markman, Stephen J., Harvard Journal of Law & Public Policy


Descending for a moment from the rarefied atmosphere of our panel's discussion of the United States Supreme Court, I would like to offer several perspectives on the role of precedent from my vantage point as a Justice of the Michigan Supreme Court for the past nine years. What may render this perspective of some interest in the present venue is that a majority of this court, four of its seven justices, are self-described "Federalists" and are committed to the judicial values that are often identified with the Federalist Society--in particular, a commitment to giving faithful meaning to the words of the law and to operating within the restraints of a constitution in which the separation of powers is fundamental. Moreover, ours is a court on which fine jurisprudential matters, such as the existence of an "absurd results" rule, the significance of legislative acquiescence as an interpretative tool, the virtues of the "last antecedent" rule, and uses and abuses of legislative history are routinely, and I believe thoughtfully, addressed at our conferences and in our opinions.

What in my experience most differentiates the Michigan Supreme Court from other state courts, including those routinely described as "conservative," "judicially restrained," or "strict constructionist," has been the court's treatment of precedent. Although respectful of precedent, as any judicial body must be, in the interests of stability and continuity of the law, the court has also been straightforward in its insistence that regard for precedent must be balanced with a commitment to interpreting the words of the law in accordance with their meaning. (1) That is, what most distinguishes the Michigan Supreme Court from other even conservative state courts of last resort has been its unwillingness to institutionalize the precedents of earlier justices who, like Justice William Douglas on the United States Supreme Court, expressed their preference "to make, rather than to follow precedent." (2) We have resisted becoming a participant in such a ratcheting process, by which periods of punctuated equilibrium periodically occur in which the law lurches in the direction favored by Justice Douglas and his philosophical allies, during which new precedents arise bearing little more than a random relationship to the written law, only to be followed by periods of conservative judicial rule in which these new precedents are affirmed in the interests of stare decisis and become a permanent fixture of the law.

Instead, the Michigan Supreme Court has set as its priority the proper exercise of the "judicial power," to read the law evenhandedly and give it meaning by assessing its words, its grammar and syntax, its context, and its legislative purpose. The court's dominant premise has been on "getting the law right"--moving toward the best and most faithful interpretations of the law--rather than in reflexively acquiescing in prior case law that essentially reflected little more than the personal preferences of predecessor justices.

The perspective of the court in addressing questions of constitutional, statutory, and contractual interpretation has been that, in exercising the "judicial power" of Michigan, it is our primary responsibility to say what the law "is," not what it "ought" to be. This responsibility derives from Marbury v. Madison, (3) from the Preambles to the United States and Michigan Constitutions, which direct us that it is "this" Constitution to which "we the people" have assented, from our "oath of office" in support of "this" Constitution, and from the inferences drawn from Article V, the amending provision of the Constitution. This primary responsibility also derives from our sense of constitutionalism--that to exceed this limited authority is necessarily to trespass upon the authority of the executive and legislative branches of government. Moreover, there is no alternative rule of interpretation, of giving meaning to the law, that both precedes the decision and better communicates that the decision is something more than a function of a judge's own personal predilections.

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