Michigan Supreme Court | Susan J. Demas
It’s not easy for a Democrat to win enough votes on a GOP-dominated Supreme Court to become chief justice, but that’s exactly what Bridget McCormack did last month.
And the vote was unanimous. The court is currently split 4-3 in favor of Republicans.
But the once-fractured and highly partisan court has been a more collegial body over the last decade, as McCormack told the Advance in the first part of this interview. She even has her own Ruth Bader Ginsburg-Antonin Scalia-type relationship with former Chief Justice Robert Young, who briefly ran as a Republican for U.S. Senate in the 2018 cycle.
Nonetheless, McCormack has angered GOP partisans and befuddled some pundits with her ability to persuade colleagues on key cases. She said that there’s no “witchcraft” involved; it’s just a matter of the best arguments winning out.
“We all show up and make the best arguments we can and talk to one another. I don’t think there’s any witchcraft or trickery happening. It’s actually just smart people trying to show up and get their job done,” McCormack said.
Michigan has the distinction of being the only state in the nation with women in all four leadership posts: McCormack as chief justice, Gov. Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson.
While the state has only had two female governors, two female attorneys general and one female U.S. senator in history, the High Court been a more hospitable place for women. She is the sixth woman to ascend to the chief justice role, following in the footsteps of Mary Coleman, Dorothy Comstock Riley, Elizabeth Weaver, Maura Corrigan and Marilyn Kelly.
When asked why women have had more success shattering the judicial glass ceiling, McCormack said she honestly didn’t know, but noted that being chief justice is “a lot of extra work and not really extra money.”
The number of female judges in Michigan has been rising steadily for two decades, according to statistics compiled by the Michigan Supreme Court. The percentage has grown from 21 percent in 1999 to 38 percent in 2019.
Of the 29 newly-elected judges in 2018, 18 were women, per Michigan Supreme Court data. The Michigan Judicial Institute, the Supreme Court’s education division, recently held a training session for judges with less than two years’ experience on the bench. There were 64 attendees and 57 percent were women.
In this last installment of the interview, McCormack talked about President Trump’s flurry of judicial appointments and the most significant case she’s ever presided over.
The following are excerpts:
Michigan Advance: You are the sixth female chief justice in Michigan history. We’ve only had two female governors, two attorneys general and one female U.S. senator. Why do you think more women have been able to break the glass ceiling on the High Court?
McCormack: That’s a great question, and you’re the first person who’s ever asked that of me, so I’m spitballing. Gosh, I don’t know. The Michigan Supreme Court at one point had a majority of women. There were four women on the court at one point, and that’s pretty unusual among not just in government, but among high courts.
… The number of women judges creeps higher every year. I’m not sure why women are more likely to serve in this branch than the others. On the Supreme Court … there’s no extra pay for being the chief, and you don’t get like a break in one part of your work. It’s the same amount of work, and then a whole lot more work.
… The administrative work in the court, in my view, turns out to be some of the most important work we can do because that’s where we have an influence on how the trial courts actually serve the public. As you know, most people who interact with our courts interact with their local district or circuit courts because they’ve had something, usually something difficult happened in their family or their business or their life otherwise. How those courts really serve the public is kind of, I think, the most important of the work we do.
I don’t know. Maybe administrative work might appeal to women, or women are better at doing more jobs. I didn’t say that, not really. [laughs] I don’t know what the answer is, but it’s a lot of extra work and not really extra money. I think it’s really important work, and I’m not sure why more women have been able to do it. I really don’t know.
Michigan Advance: Michigan is right now the only state in the country with women in four top leadership positions: governor, attorney general, secretary of state and chief justice. How significant do you think that is?
McCormack: I think it’s pretty significant to be the only state that has women in those positions. Probably more important is that the women in those positions do some good for the public, obviously, but I think for our kids, it’s nice for them to see this moment in their state’s elected leadership. I have … three sons and a daughter, but I’m delighted that that’s what they see when they look at who’s leading their government right now. When I was growing up, I never saw that.
Michigan Advance: Some longtime pundits, like Republican Bill Ballenger, seem to have been fascinated by your time on the court and your ability to persuade your colleagues, especially Republicans, on issues, like putting the redistricting initiative Proposal 2 on the ballot last year. Do you think there’s been some sexism in that kind of analysis?
McCormack: I would invite others to put subjective labels on those analyses, but I would say that it’s worth a look. Obviously, the court’s conferences are confidential, but I didn’t write the majority opinion in the redistricting case, so I’m not sure why I got singled out for having any special powers in decision-making.
If you look closely at the majority opinions of the court last year, I didn’t write the majority of the majority opinions. If people are actually interested, we all show up and make the best arguments we can and talk to one another. I don’t think there’s any witchcraft or trickery happening. It’s actually just smart people trying to show up and get their job done. The subjective labels are interesting though, and I would invite others to see what they think about those.
Michigan Advance: What are some of the biggest cases that the court might be handling this term?
McCormack: We have a lot of cases that we still haven’t decided what action we’re going to take on them, but a lot of the important cases in the state come to the court. That’s just the way it goes. We did hear oral arguments in the unemployment insurance case in October, so that’s a case that’s under consideration. We have applications in many of the other major pieces of litigation going on in the state. We’ll have to be deciding what to do about each of those.
Then again, even some of the cases that might not make headlines are still pretty important cases. We just finished a case call this week and had a couple of important double jeopardy cases and some additional cases about the sentencing guidelines. They might not make headlines, but each of them is important.
Michigan Advance: President Trump has made a lot of headway in his first two years with judicial appointments, well beyond his two Supreme Court nominees. How do you think Trump’s remaking of the federal judiciary will impact key areas of law?
McCormack: As I said before, the federal judiciary’s obviously important, and who sits on the federal bench is important, but most law happens in the state courts. That’s always important to remind people. In addition to that, there is a lot of noise about which president’s appointing which judges. Most judges, they take an oath to follow the law and apply it. I personally know a number of the people who have been appointed in the last two years, and they are excellent judges. I have every confidence that they’re going to do the job that they took an oath to do.
Michigan Advance: In terms of the state judiciary, have you noticed any significant changes during your time on the state Supreme Court?
McCormack: I understand that the number of women serving on the state bench is up yet again. … I forget what the total tally is, but more and more women are serving in the state courts. That’s one change. That’s exciting.
Michigan Advance: What would you say are some of the most significant cases that you feel you’ve been able to preside over on the Supreme Court?
McCormack: I love all my cases equally, of course.
Michigan Advance: Like your children.
McCormack: Exactly. But yeah, there have been a few important ones, at least a few cases that I think have made an important difference in a bigger impact kind of way, not just the two parties who were there in court. Just for one example … it might have been in 2013 or ’14, pretty early in my tenure. The court was asked to decide whether a longstanding policy of the Department of Health and Human Services … Actually, it was really the court’s at the request of the department.
When one parent had been accused of abuse or neglect and had their children removed, there was a doctrine that permitted the court to remove the children from the second parent, even if there was no allegation whatsoever that the second parent had done anything to earn that result. We entertained a challenge to the constitutionality of that policy, and in a decision, In re Sanders, held that it’s unconstitutional. It unconstitutionally interfered with the second parent’s … right to parent their children.
I’m not sure anybody [noticed], except the courts that have to now adjudicate those claims — and I think it made a lot more work for them, so they might not be happy with me. The parents who end up losing their kids as a result of that policy noticed, but I think it was a pretty important decision for lots of families and frankly, usually, lots of poor families in the state. That’s who usually fell into that system. There are probably others, but that one feels like a pretty important one.
Sometimes the cases that are blockbuster ones in the news are like not necessarily the ones that make the biggest impact on actual people’s lives. Then these decisions that actually have an important impact on people’s lives, no one ever writes about them or knows about them. I’m still proud that the court answered the question and figured out that the Constitution doesn’t allow that.
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