Gender, Race, and Partisanship on the Michigan Supreme Court

Abstract

INTRODUCTION Judicial research has increasingly focused on the importance of state supreme courts as players in policy-making. If only because of the large volume of cases that they hear each year, state courts of last resort exert a tremendous influence. State supreme courts have come to the attention of judicial scholars recently because of a trend called the judicial federalism in which civil rights litigants, facing the increasing conservatism of the Supreme Court, have made a strategic shift to state courts.(1) In 1986, United States Supreme Court Justice William H. Brennan Jr. wrote that the `[r]ediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions ... is probably the most important development in constitutional jurisprudence in our time.'(2) A number of scholars have tracked the new judicial federalism, focusing on the policy development potential of state supreme courts.(3) State supreme courts relied on state constitutional guarantees to afford their citizens greater protections in only ten cases between 1950-1969. In contrast, the courts' reliance on the greater protection of state constitutions occurred in over 300 cases between 1970 and 1986.(4) The success of this strategy relies on the more liberal propensities of some state high courts and their willingness to use state constitutions to afford their citizens greater protections.(5) Long known for their conservative bents,(6) it has been suggested that state courts have become more liberal with respect to civil liberties, in part, because of changes in the values reflected in the judges' attitudes and the type of litigation and arguments that come before appellate courts.(7) This change in perspective has accompanied a decline on the bench in the number of economically comfortable white Protestant men,(8) with substantial prosecutorial experience, and a concomitant increase in racial and gender diversity among judges.(9) The Michigan Supreme Court offers an interesting opportunity for a case study to examine the impact of gender, race, and partisanship on judicial voting behavior.(10) I. RACE AND GENDER DIVERSITY ON THE MICHIGAN SUPREME COURT Michigan has the distinction of having more racial and gender diversity than most state high courts.(11) In 1977, Michigan became one of only nine states to have a woman on their state's highest court.(12) Justice Mary Coleman, a white Republican, went on to become the first female Chief Justice of a state supreme court.(13) After Chief Justice Coleman's retirement in 1983, a white Democrat, Patricia Boyle, resigned her federal district court judgeship to accept appointment to the Michigan Supreme Court.(14) Shortly thereafter, Dorothy Comstock Riley, a white Republican, joined her.(15) In 1994, Elizabeth Ann Weaver, also a white Republican, was elected to the court.(16) In 1996, Marilyn Kelly, a white Democrat, was elected, joining Justices Weaver, Boyle, and Riley, making Michigan the only state in the United States at that; time to have a majority of women on its high court.(17) That majority tenure was brief, ending with Justice Riley's resignation in 1997(18) and her subsequent replacement by a white, male Republican.(19) The first African-American to serve on the Michigan Supreme Court was Otis Smith, who served from 1961 to 1967.(20) In 1985, Dennis Archer, a Democratic male, became the second African-American to join the Michigan Supreme Court.(21) When he resigned in 1990, Conrad Mallett, an African-American Democrat, replaced him.(22) In 1997, Justice Mallett became one of the first African-Americans to ascend to the role of chief justice on a state's highest court.(23) In 1998, Justice Riley chose not to run for a third term, and was replaced on January 1, 1999 by Maura Corrigan, a white Republican woman.(24) Additionally, Justice Mallett resigned, replaced by an African-American Republican male, bringing over twenty years of Democratic Party majorities on the court to an end. …

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