Stare Decisis V. the "New Authority": The Michigan Supreme Court's Practice of Overruling Precedent, 1998-2002

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I. INTRODUCTION

The 2000 election for the Michigan Supreme Court went down in history as Michigan's most expensive judicial race ever. (1) In addition to having spent in excess of fifteen million dollars, the campaign was tarnished by vicious mud-slinging and accusations by both the Republican and Democratic parties. (2) Three open seats on the Michigan Supreme Court, previously held by conservative justices appointed by Governor John Engler, spurred this unprecedented battle. (3) Although Michigan Supreme Court Justices are elected in a nonpartisan election, they are nominated at party conventions, and they receive the support of the Republican and Democratic parties. (4) When the dust settled from the 2000 election, the Republican incumbents had prevailed over their Democratic-backed counterparts, and a conservative bloc remained in the Michigan Supreme Court. (5)

During the election, the Democratic party's attacks focused on the court's practice of overturning precedent, a trend that increased dramatically from 1998 to 2002. (6) The Democratic Party contended that this increase reflected a conservative shift in the Michigan Supreme Court created by the Engler-appointed justices, and that these conservative justices were overturning precedent to change the law to favor corporations--especially insurance companies. (7)

The criticism directed toward the conservative majority remained after the 2000 election, and was voiced not only by politicians but also through dissent within the court chambers. (8) Why has the new court, beginning with the Engler-appointed justices, felt the need to overturn precedent at nearly twice the rate of the era before them? What do these opinions tell Michigan constituents about the ideologies of the justices sitting on their highest court? Is there truth behind the allegations made by the Democratic Party during the 2000 election, or is the conservative majority simply returning the Michigan Supreme Court to its "proper role of interpreting the law, not creating it"? (9)

This study seeks to answer these questions by examining cases from 1998 to 2002 in which the majority chose to overturn past case law. (10) By analyzing the majority, concurring, and dissenting opinions written by each Michigan Supreme Court Justice, this study will identify individual Justices' voting patterns and the ideologies that underlie their respective decisions.

II. DEFINING CONSERVATISM AND LIBERALISM

Before categorizing the Michigan Supreme Court decisions and their authors as conservative or liberal, it is necessary to define these terms as they exist as political ideologies. Conservatism embodies the principle that individuals hold inherent rights that are best protected by limiting the power of the government. (11) Therefore, conservative values include limited government, autonomous institutions, and individual freedom. (12) Limited government interference enables a society to establish cultural entities over generations, which, in turn, produces institutions "shaped in accordance with the demands made on them; their defects and unintended consequences will become apparent and, under pressure for reform, reshaped." (13) Reflecting the belief that social institutions evolve from the demands placed on them by individuals, conservatism embraces capitalism, based on its proven success over time in promoting the ideals of democracy. (14) Conservative values include the right to retain the fruits of one's labor, individual initiative, and the duties one has to his society based on tradition. (15)

In contrast to conservatism, liberalism places the greatest emphasis on the civil and political rights of each individual. (16) Liberalism values individual freedom over traditional community values and "demand[s] a substantial realm of personal freedom ... which the state should not intrude upon, except to protect others from harm." (17) While liberalism traditionally supported limited governmental interference and laissez-faire capitalism, contemporary liberalism has shifted, and now promotes the government's role in advancing individual rights. …