Justice Scalia once said, “I attack ideas. I don’t attack people.” In this, he got it precisely right in describing how a judge should approach the work of the court. And, as your next Michigan Supreme Court Justice, I think this sentiment should go even further, as I’ll explain in a bit.
First, what did Justice Scalia mean by these two sentences? He clearly did not mean we should be passive in our views about the law or a particular case, as he was anything but. And his first sentence makes this clear—as jurists, we should never avoid attacking what we consider a wrong idea. Simply put, a wrong idea does not magically become a right idea because 2 other judges (on a 3-judge panel) or 6 other justices (on our Supreme Court) think it so. While a judge must always be open to having his or her mind changed by a good argument or new evidence, any judge worth his or her salt cannot shy away from dissenting from a bad idea held by the majority.
But, as Justice Scalia recognized, it is one thing to attack an idea, it is another thing to attack a person, whether that person is another judge, party, lawyer, or member of the public. While personal attacks seem to be the norm, not the exception, in many of today’s political arguments, a judge or judicial candidate cannot be tempted to enter this fray. Our judicial canons require a judge or candidate to maintain the dignity of the Judiciary, and each judge is repeatedly reminded to treat “every person fairly, with courtesy and respect.” Canon 2(B), see also Canon 3(A)(14). Beyond this, personal attacks are almost always counter-productive in a case—I would much rather see my proposed dissent become a proposed majority opinion, as happens on occasion. We all know that it is difficult to convince another person when you start off by attacking them.
When I became a judge on the Michigan Court of Appeals, I wrote these two sentences down as a daily reminder. If you read any of my dissenting and concurring opinions (and all of these are publicly available), you will see that I relish attacking ideas. I love a good argument, and I do not back down from a position unless and until a better argument or new evidence comes along. At the same time, I do not attack people.
In fact, I take Justice Scalia’s admonishment a step further—Not only do I not attack other judges, parties, or lawyers, but I start off by presuming that those other judges, parties, and lawyers are acting in good faith, with the best of intentions, unless and until proven otherwise. I might disagree with another judge about the law, but that does not mean that I take the disagreement personally. If I want my fellow judges and lawyers to treat me this way, then the least I can do is reciprocate.
At the end of the day, I write these brief blog posts to give you a window into the kind of Justice I will be on the Michigan Supreme Court. But what if a judge or candidate refuses to abide by Justice Scalia’s sentiment? Well, as he concluded, “And if you can’t separate the two, you gotta get another day job.” Keep this in mind as November 3rd approaches.
Yours in the Law,