Abortion ballot initiative drama sparks new focus on Michigan Supreme Court races this fall

What a difference a week makes.

Prior to Sept. 9, the Michigan Supreme Court had yet to say anything about a proposed reproductive rights ballot initiative and whether it should be on the ballot in November.

And up until Monday, the court’s leadership wasn’t even considered an issue.

But all of that has changed, starting with last Thursday’s ruling that ordered the Board of State Canvassers to certify both the Reproductive Freedom for All (RFFA) and Promote the Vote ballot proposals. 

Then on Monday, there was a bombshell announcement by Chief Justice Bridget Mary McCormack that she plans to retire from the bench before the end of the year — roughly six months before her term ends. McCormack, who was nominated by Democrats, will be replaced with a nominee from Democratic Gov. Gretchen Whitmer — her first chance to put her stamp on the Supreme Court. Her predecessor, GOP former Gov. Rick Snyder, had that opportunity five times.

Together, the two developments have placed added significance on the race in November for two seats on the state’s highest court that will determine partisan control.

Justices are identified as nonpartisan on the ballot, but are nominated by political parties at state conventions. For the Nov. 8 election, Democrats nominated Justice Richard Bernstein and state Rep. Kyra Harris Bolden (D-Southfield) and Republicans have picked Justice Brian Zahra and attorney Paul Hudson.

While the court currently has a narrow 4-3 Democratic-nominated majority, the potential exists for the party to flip a seat in November, especially if abortion remains the top issue for voters and they turn out to vote for the RFFA ballot proposal.

If approved, Proposal 3 would enshrine in the state Constitution Michiganders’ right to make and carry out decisions relating to pregnancy, including abortion, birth control, prenatal care and childbirth.

The initiative made history in July when it filed a record-breaking 753,759 signatures to place it on the ballot.

Polling data shows that among new voters who have registered in Michigan since the right-wing U.S. Supreme Court overturned Roe v. Wade in June, women are out-registering men by 8.1 percent, while Democrats are out-registering Republicans by 18 percentage points.

Republicans have enjoyed control of the Supreme Court for most of the last 20 years, starting in the GOP former Gov. John Engler era. 

In an unusual move, justices made McCormack chief justice starting in 2019, even though there was a 4-3 GOP-nominated majority at the time. The University of Michigan law professor has had a productive relationship with her conservative colleagues and has been credited with ushering in a more “collegial” atmosphere on the state’s highest court.

Democrats took over the court’s majority in 2020, shortly after a Republican majority struck down Whitmer’s authority to direct Michigan’s pandemic response. The question now is whether a further strengthening of the majority will result as a backlash to Roe being overturned.

Meanwhile, the two incumbents seeking re-election to eight year terms, Bernstein and Zahra, traded legal jabs on the RFFA ruling, underscoring the stakes on the ballot in November.

Zahra, who along with fellow conservative Justice David Viviano voted against certifying the initiative, concurred with anti-abortion activists and the Republican members of the state canvassing board, that spacing errors on the petition made the proposed constitutional amendment unintelligible.

“As a wordsmith and a member of Michigan’s court of last resort, a court that routinely scrutinizes in great detail the words used in statutes and constitutional provisions, I find it an unremarkable proposition that spaces between words matter,” said Zahra in his dissent. “Words separated by spaces cease being words or become new words when the spaces between them are removed.”

Bernstein, who is blind, responded forcefully in a footnote to the order.

“Justice Zahra notes that, as a wordsmith and a member of this court, he finds it ‘an unremarkable proposition that spaces between words matter’, wrote Bernstein. “As a blind person who is also a wordsmith and a member of this court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me.”

Both Zahra and Hudson have been endorsed by the state’s leading anti-abortion group, Right to Life of Michigan, which is part of a coalition against Proposal 3.

When asked by the Michigan Advance about the election, Bernstein concurred with the notion that it will be pivotal.

“I think it’s fair to say that this election is going to have far reaching implications,” he said. “And I think this is the one election that will decide the structure and makeup of the court for a long time.”

Bernstein added that the effect the departure of McCormack will have on the court can’t be understated.

“I’m just going to be honest,” said Bernstein. “This is a devastating loss. This is a person who is irreplaceable.”

McCormack, who is expected to become president and chief executive of the American Arbitration Association-International Centre for Dispute Resolution, did not provide an exact date for her departure. However, she said it will not be prior to Nov. 22, two weeks after the election.

Because Senate confirmation is not required for an appointment, Whitmer will presumably have complete freedom to choose an ideologically-inclined justice to fill the vacancy.

Although that person will have to run in 2024 to serve out the balance of the term, McCormack’s retirement, in and of itself, won’t change the court’s current 4-3 Democratic majority.

Bernstein, however, says McCormack has abilities that transcend partisanship.

“Usually you get someone who’s incredibly academic and incredibly intellectual and incredibly brilliant, but they’re not able to lead,” he said. “You don’t get both. And with her, you have both.”

While Bernstein lamented McCormack’s impending departure, he recognized that the court will move forward, regardless, and that issues like abortion access have taken on greater importance than they have in the past. 

“I don’t think that people pay a lot of attention to the Supreme Court races in comparison to the impact that they ultimately have on people’s lives,” said Bernstein. “It’s funny, because I’ve been saying this for such a long time, but when you dig into the discussion or the question about reproductive rights, the Michigan Supreme Court is going to be the last word in this overall question. 

“And I think what happens is people say, ‘Wait a minute, why would the Michigan Supreme court be the last word on the question of reproductive rights?’ And the answer is even when we’re talking about (the RFFA) ballot initiative, there’s going to be a number of steps and all of those steps are going to be subject to legal challenges and legal issues.”

So if voters energized by the prospect of restrictions to abortion access turn out in November and elect both Bernstein and Bolden, a 5-2 shift to Democrats, which hasn’t happened this century, will become a reality. Conversely, if there’s a GOP wave and voters select Zahra and Hudson, a 4-3 Republican majority will result.

Michigan Democratic Party Chair Lavora Barnes tells the Advance that Zahra’s rationale to ignore the more than 750,000 Michiganders who wanted to vote on the reproductive rights initiative makes the contrast clear in November.

“He put personal politics in front of sound judicial reasoning which is the very definition of an activist judge and why he should not be retained this November,” said Barnes. “Justice Bernstein as a distinguished member of the court and Kyra Bolden as a well respected attorney and fair lawmaker are exactly the type of people that we need sitting on the bench making life and death decisions for Michigan families. Who we elect matters, and this very issue proved that to be true.”

The Republican State Leadership Committee (RSLC) also is stressing the growing importance of state Supreme Court races is the , although its focus goes beyond abortion rights

“We are approaching these races through the mindset of how state supreme courts will affect the redistricting process for the next decade,” spokesman Andrew Romeo told Politico. “Redistricting is the tip of the spear for our [judicial] strategy.”

The RSLC did not respond to a request for comment by the Michigan Advance, nor did the reelection campaign of Zahra.

Bernstein, however, emphasized that voters shouldn’t think that approving Proposal 3 in November will be the end of that issue in Michigan.

“I always like to use the example of marijuana, because we are still dealing with marijuana cases, even though I would imagine most people think that’s settled,” he said.

“But the court still deals with the question of marijuana, even after these statewide referendums. Because even if it goes through, you’re still going to have challenges to it and the court’s still gonna have to weigh in. And if the Supreme Court decides on an issue, whether it’s constitutional or not, that’s it. When it comes to the question of constitutionality, as it pertains to the state Constitution, the Supreme Court is going be your final decider.”