Michigan Chief Justice’s Exit Fortifies Court’s Leftward Swing

The Michigan Supreme Court chief justice’s decision to soon step down will further cement a Democrat-backed majority that’s been in place for four years, as well as a swing to the left that court watchers say has occurred over the better part of a decade.

The pending departure by Elizabeth T. Clement, a Republican-backed justice appointed in 2017, to become president of National Center for State Courts means Gov. Gretchen Whitmer (D) gets to replace her on a court that Democratic-backed justices currently control 5-2.

“I don’t recall ever seeing a Michigan court that was so dominated by one side,” said Mark Cooney, a professor at Cooley Law School in Lansing, Mich.

In some ways, Clement’s departure—which will occur by April 30—doesn’t dramatically change things as they currently stand since liberals have held the majority since 2021. But just two months ago, that majority was 4-3; it became 5-2 when Kimberly A. Thomas took the bench last month.

If all goes their way, Republicans likely won’t have a chance to win back the majority until the 2028 election—a daunting task given that incumbent justices have won most of their recent races.

Patrick J. Wright, vice president for legal affairs at the free-market think tank Mackinac Center for Public Policy, said that “a more progressive judicial philosophy will be prevalent in Michigan for the near future.”

Wright said the new partisan balance means the Democratic-backed majority can afford to lose one or two justices on a particular legal issue and still rule the way they want. The court, soon to be 6-1, may also be bolder with certain decisions, he said.

While Whitmer will name a replacement justice, the court will pick its own chief justice for the remainder of Clement’s two-year stint that began in January.

Moving Left

The court’s leftward shift is part of a swing Cooney has noticed over nearly a decade, even before liberals gained control. As a former defense-side litigator, he recalled a business-friendly court the wake of tort-reform legislation passed in 1995.

Now, decisions are increasingly plaintiff-friendly, he said, citing a 2023 ruling that made it easier to pursue slip-and-fall cases.

Mark Brewer, an attorney for Goodman Acker PC who regularly represents Democratic candidates, noticed a shift that he framed as a move toward equity.

“In my experience, the court has become much fairer over the past several years,” said Brewer, a former longtime chair of the Michigan Democratic Party. He said the court was “unfriendly and unfair” toward consumers, working people, and voters, and that the liberal takeover “has restored the balance where it should be.”

Michigan Chamber of Commerce President and CEO Jim Holcomb said he isn’t thrilled by the court’s leftward turn. He cited decisions last year that raised the minimum wage and expanded mandatory paid sick leave, and gave a thumbs up to the broad powers that state environmental regulators have exercised to limit water pollution from manure runoff at large farms.

“Many of the decisions that we’ve seen come down appear to be activist in nature,” said Holcomb.

Court watchers are eagerly anticipating how Whitmer’s pick changes the court, if at all.

Holcomb said he isn’t expecting someone he deems business-friendly, based on Whitmer’s previous judicial appointments.

Cooney said he saw the recent shift as being from the right toward the center, and that any momentum already built up will continue.

“It’ll be interesting to see whether the results are as dramatic as some people may be anticipating,” Cooney said.