The Michigan Supreme Court, Stare Decisis, and Overruling the Overrulings
47 Pages Posted: 10 Dec 2009
Date Written: December 8, 2009
The principle of stare decisis dictates that in the absence of a special justification for overruling a prior decision, a court must follow its prior decisions, although a majority of the judges on a court as currently constituted believes that the prior decision was wrongly decided.
In this paper, I discuss and analyze the abandonment of stare decisis by the Michigan Supreme Court in the period from 1999 to 2008. During that time, a new Michigan Supreme Court majority, consisting of Justices Taylor, Corrigian, Markman, and Young, expressly overruled by my count thirty-eight cases, some no more than a few years old. While four of these overrulings may be considered non-ideological in the sense that all of the Justices concurred in the decision to overrule, the remaining thirty-four were clearly ideological. In every civil case, the result of the overruling of the prior decision was to favor defendants over plaintiffs by limiting liability or making it more difficult for plaintiffs to assert a claim. In every criminal case, the result of the overruling of the prior decision was to favor the prosecution over the defendant and to uphold a conviction against the defendant’s statutory or constitutional claim. What has happened in Michigan, pure and simple, is that a majority of the Justices on the Michigan Supreme Court overruled prior decisions with which they disagreed, in order to advance the majority’s policy objectives. Because this is so, the legitimacy of the Court’s abandonment of stare decisis during this period may properly be called into question.
In the 2008 election, Chief Justice Taylor was defeated for reelection by Wayne Circuit Judge Diane Hathaway. This brought an end to the Court majority that had abandoned stare decisis and that had engaged in an unprecedented overruling of the Court’s prior decisions. I maintain that a new Court majority should restore stare decisis to Michigan jurisprudence and in a principled way should confront the consequences of the former Court majority’s abandonment of stare decisis. First, the Court should insist on a special justification for overruling a prior decision, and should not overrule the decision simply because a majority of the Justices now serving on the Court believes that the prior decision was wrongly decided. Second, because the ideologically-based overruling decisions lack legitimacy, these decisions, as far as the Court itself is concerned, should stand on no stronger footing than the decisions that they overruled. This being so, the Court may properly decide to grant leave to appeal from a decision of the Michigan Court of Appeals that applied as controlling precedent a decision of the Michigan Supreme Court that overruled a prior decision of that Court. Upon granting leave, the Court would reconsider the overruling decision and decide whether the overruling decision or the overruled decision should be followed. The Court could also make the policy determination to add expressly as a ground for granting a motion for leave to appeal, that the Court should reconsider an overruled decision and decide whether to follow the overruling decision or the overruled decision. It is important that the Court reconsider at least some of the large number of overruling decisions of the former Court majority, as it tries to return stare decisis to Michigan jurisprudence.
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