Judicial Philosophy

The Michigan Supreme Court.

I have decided an estimated 30,000 cases during my tenure on the Michigan Supreme Court. During that time, I have sought consistently to apply the following judicial values and principles in my decisions:

  • I agree with Chief Justice John Marshall who said in Marbury v Madison in 1803 that it is the role of the judge only to say what the law “is,” and not what it “ought” to be. It is the role of your legislature, your county commission, and your city council – comprised of your elected representatives – to say what the law “ought” to be. If there was any overriding goal of our Founders, it was to create a republican form of government, in which “we the people” determined our own public policies, not lawyers in robes. The judge is the interpreter of the law, not its maker, and it is his responsibility to faithfully interpret the words of the lawmaker, unless these words violate the federal or state constitutions.
  • I believe “we the people” are entitled to determine their own public policies even if the judge happens to believe that they are mistaken in their judgments. Judges are not the “adult supervisors” of society, and they are not our “lawmakers-in-chief.” Judges do not get to “alter” or “improve” laws with which they disagree, although that is the great judicial temptation. The people have the right to have their decisions in initiatives and referendums, and the judgments of their legislators in statutes and ordinances, respected, unless these decisions and judgments breach the Constitution. Ours is a Constitution that limits judges just as it limits all others in government.
  • I believe that the first responsibility of government concerns the protection of citizens from violent criminal predators. This is what the preamble to our Constitution means when it sets forth government’s responsibility to “insure domestic tranquility.” The right to be free from criminal predators is the first of our civil rights, and as the federal prosecutor in Detroit, I learned that no society can prosper unless there is this sense of public priority. Our criminal justice system is not a game, and it is not a sporting contest, but it is the means by which government carries out its first responsibility, and judges must treat this obligation as their first responsibility as well.
  • Carrying out this first responsibility requires that courts do everything possible to ensure both that violent predators are segregated from society for as long as possible, and that there are procedures for the protection of the innocent, who are entitled to every reasonable opportunity to demonstrate their innocence.
  • I believe that our common-law, or customary law, is predicated upon traditional principles of personal responsibility and individual accountability.
  • I believe that stability and predictability in the law are paramount values, and that wasteful and unnecessary litigation is encouraged by court decisions that are vague, or incompatible with what the words of the law state. Litigation imposes an enormous toll upon individuals and society, and we  have significantly less litigation in Michigan today than we did a dozen years ago, in part because the law has been made more clear and certain.
  • The “equal rule of law,” the great and distinctive achievement of our civilization, is one in which there are no ‘thumbs on the scale’ of justice; no partisan justice; no ‘doing politics’ by another name in the courtroom; no judicial constituencies; and judges whose only obligation is to treat fairly the “top 100%” of the American people. I am not “pro-or-anti” any interest group, except that I am pro-“equal rule of law.” In every case, I do my best to read the law faithfully, and apply that law in an even-handed manner.
  • I do not believe that judges should decide cases according to their own personal preferences or sympathies. This is not the “rule of law,” but it is the “rule of judges,” and this is not the constitutional heritage of the United States of America. And our constitutional heritage has helped to make this Nation the freest, the most productive, the most creative, the most stable, and the most charitable nation in the history of the world – a genuinely exceptional nation in which we are each blessed to be citizens and to be able to pursue our interests and dreams as we desire.
 

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