'Rule-of-law' judge? Don’t be fooled. Here's what that really means | Opinion

Yet again, we've been treated to a tired exercise: A candidate for the Republican nomination for the Michigan Supreme Court proclaimed his fidelity to rule-of-law judging to a Michigan news outlet. The candidate told the Coldwater Daily Reporter: "I fully understand the significance of being a Rule of Law Judge." (Using capital letters, no less.) And then: "I will not legislate from the bench; I will simply apply the law as written."

Leave aside the fact that a great deal of law is common law made by judges (torts, contracts, property law). Leave aside that the description is a clichéd truism: No judge would deny that their job is to apply the law as written. Beyond that, though, what’s wrong with the description?

For one thing, it’s hopelessly simplistic. Rarely — at least in appellate cases — does “the law as written” lead to a single, unmistakable result or conclusion. The law is full of vague terms whose application to facts is typically arguable: "due process," "probable cause," "reasonable doubt," "good cause" and countless others.

What’s more, even less legal-seeming words can present difficult calls. The Michigan Supreme Court has, for instance, debated whether police officers who lied during an internal investigation provided “information” to the investigators and whether drywall that had fallen from a truck and landed in the road “hit” an ambulance that collided with it later. A few more examples? The court has debated how the following commonly used words applied to the facts in the case: "already," "each," "fee," "for," "gift," "keep," "maintain," "question," "tip" and (get this) "the." The point is, again, that “simply” applying the law as written is anything but simple.

More from Freep Opinion: Why are Michigan's Black leaders backing longshot Senate candidate?

A second objection to the rule-of-law mantra — in my view, at least — is that it signals a so-called textualist approach to judging. Textualists profess to look for a law’s “ordinary meaning” by scrutinizing its words, syntax, and structure. This often involves bringing to bear a set of linguistic “canons” of construction that are highly malleable and sometimes conflicting. And it very often involves rummaging through a dictionary’s superstore of possible meanings. Textualist judges tend to have less use for legislative history, the law’s broader purpose and context, sensible policy, judicial intuition and a decision’s practical consequences.

Now, regardless of how well-founded textualism might be in theory, in practice it has become the brand name for ideologically conservative judging. In 2017, I published in the Wayne Law Review a study of over 90 cases — decided between 2000 and 2015 — in which the court overruled its earlier decisions.

The court, during that time, was dominated by textualists. Many of the overruled cases had been law in Michigan for decades.

More from Freep Opinion: Hollier may struggle with 13th District ballot due to petition signature issue

I coded the cases according to their ideological tilt, and in 96.3% of cases, the tilt was conservative: they made it harder for plaintiffs to sue and recover or get relief in civil cases (think so-called tort reform), and made it easier in some way for the prosecution in criminal cases (think “tough on crime”).

You can argue over rough measures, but a number so one-sided cannot be rationalized by any theory of interpretation that purports to be evenhanded.

Incidentally, other studies show similar propensities among textualist judges on the U.S. Supreme Court.

All judges — not just textualists — are influenced by their backgrounds and worldviews. But textualists claim to operate on a higher plane. They are more neutral, objective, restrained. They show the proper deference to the Legislature. But in fact, their theory of interpretation is just as pliable as any other. And they seem unwilling to own up to the skewed record it has produced, especially in high-profile cases, cases that shape the law.

At least you now know the code.

Joseph Kimble is a Distinguished Professor Emeritus at Cooley Law School. Some portions of this commentary appeared previously in Michigan Lawyers Weekly. Submit a letter to the editor at freep.com/letters, and we may publish it online or in print.

This article originally appeared on Detroit Free Press: What 'rule-of-law' means coming from Michigan Supreme Court candidates