Monday, March 7, 2011

EXPLAINING THE INEXPLICABLE (Number 16)

The media were all over it. Headlines blared the news that the Supreme Court had reversed its decision and ousted Dorothy Riley.

The court’s sudden about face was the handle that gave the story legs. To the average person, Supreme Court decisions are sacrosanct. Once the Supreme Court has spoken, the matter, any matter, is done. Over. Finished.

The idea that the justices might be able to take a mulligan doesn’t sit well with most folks.

Especially when the division of votes on the court follows party affiliation, the picture of a court counting and recounting noses confirms the suspicion of the public that court decisions are not really based on law, but are simply expressions of the political choices of the justices.

The Riley ouster fermented lots of editorial comment about the need somehow to get the Supreme Court out of politics. It’s an old theme that rises up and ebbs like a predictable tide of public opinion.

Of course the immediate focus was on Chuck Levin. The enigmatic justice had created a fire storm with his change of heart. The media demanded an explanation.

Reluctantly, Levin agreed to a news conference.

Press relations were not Levin’s forte. Getting a sound bite from him was like trying to distill a doctoral thesis on atomic particles down to a headline.

He answered every question with a long, complicated dissertation.

His first opinion wasn’t really intended to support Riley. It just said that he didn’t want to do anything. He still couldn’t decide which Governor should be able to make the appointment.

In fact, he didn’t think the court should be deciding the matter. He could see no reason why the new Governor, Jim Blanchard, couldn’t have appointed somebody to the court also. The court had operated with eight members for many years, it could do so again, at least until the next election.

When the fog and the obfuscation settled, what emerged in the papers was the simple fact that Levin had changed his mind. No one will ever know why. Maybe not even Levin himself.

There were rumors that some Democratic Party operatives figuratively camped out at Levin’s home over the weekend. If so, and if he had decided to vote to oust her, he would have been sitting across the table at the conference that Tuesday harboring the knowledge of what he had decided to do.

Or, as it has been suggested, was there something that happened that day, something she said, some way she voted, which triggered his decision?

Whatever the scenario, it was a fait accompli.

As I read the press reports, my blood began to boil.

Being a former Chief Justice of the Supreme Court of Michigan meant a lot to me. It was the defining achievement of my career. Whatever demeaned the court diminished me, as it besmirched the reputations of my friends and embarrassed the institution we all had served.

I tried to reach Dorothy, but she declined to talk to me. I spoke to Wally. He thanked me for my interest, but he made it clear that Dorothy was not going to take the matter to the Federal Courts. She felt the work of the court had already been unduly interrupted. Continuing to embroil the court in internal conflict was not good for the court and not good for Michigan.

I remembered what old Gene Black had said when I was on the court. I protested something that was proposed, saying, “We can’t do that. We have no authority to do it.”

His reply stuck with me. “If we do it, who shall gainsay us?” It came to be known as the seven hundred pound gorilla rule.

The notion that a majority of the court can do whatever they want to do is absolutely anathema to me. It denies the rule of law.

I could not let it stand without a challenge.

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