Opinion | Gov. Whitmer, it’s time to diversify the Michigan Supreme Court

Recently, Chief Justice Bridget McCormack announced that she will retire from the Michigan Supreme Court by December 31, 2022 leaving a vacancy for a new successor and an opportunity for Gov. Gretchen Whitmer to prioritize professional diversity on the bench.  Justice McCormack’s departure will leave the makeup of the court with three white women and three white men. Of the 115 justices in Michigan’s history, thirteen were women, five Black but zero were Black women. Of the six justices currently on the court, the majority have corporate law backgrounds.

Although judges are expected to be objective arbitrators, anecdotal and empirical evidence reveal a judge’s prior experience, both personal and professional, influence their judicial decisions. Justice Lewis Powell credited Thurgood Marshall’s position as the first Black Supreme Court Justice as informative because “a member of a previously excluded group can bring insights to the courts that the rest of its members lack.” Justice Byron White noted that Marshall’s experience as a civil rights attorney (the only civil rights attorney on the Supreme Court at the time) gave him experience none of the other justices could match and that experience influenced their decision-making. 

In modern history, we continue to see how far we have to go in diversifying our courts at every level. Just this year, we bore witness to now Justice Ketanji Brown Jackson make history as not only the first Black woman to serve on the Supreme Court of the United States, but also be just the second justice, since Thurgood Marshall, to have worked as a public defender.

The law has various specialities and overreliance on certain backgrounds for judicial candidates can skew legal outcomes. For instance, studies show in employment cases that judges with corporate or prosecutorial experience are more likely to side with corporations compared to judges who have experience representing individuals, who will side with employees.

With a federal judiciary that has grown increasingly hostile towards protecting the civil rights and liberties of people, all eyes are understandably turning to state courts to be our last line of defense. With most of the litigation in this country being heard in state courts, these are arguably the forums for justice where diverse perspectives matter the most.

Just earlier this month, enforcement of Michigan's 1931 abortion ban was blocked by a Michigan state court judge who ruled that the Michigan Constitution's due process clause is broad enough to cover reproductive rights. The Michigan Supreme Court was the venue that ultimately decided to allow a question before Michigan voters this November on whether to protect abortion rights in the state Constitution

As the United States Supreme Court recently ruled against the constitutional right to an abortion in Dobbs, many states are now the final option to protect a person’s right to privacy and to choose. States may very well be the final resort for so many other rights that are under attack at the federal level. In recent years, interest has grown in the professional diversity of the federal judiciary and President Joe Biden has responded by appointing brilliant public interest attorneys like Judge Candace Jackson-Akiwumi, Judge Jennifer Sung, Michigan’s own Judge Jane Beckering and so many others. The positive impacts from the added professional backgrounds joining the ranks of the federal judiciary are already being felt.

Gov. Whitmer should follow President Biden’s lead and appoint a justice who will bring professional diversity to the makeup of the Michigan Supreme Court and protect the rights of Michigan residents for decades to come.