Joel Jacobsen

Is it more important to have a good reputation or to deserve one?  That's the question facing the justices of the Michigan Supreme Court these days.

It's difficult to know the exact basis of the dispute on that theatrically dysfunctional court, except that it seems pretty clear the majority of four petulant Attilas ignored the cardinal rule of open government, as recently expressed by my new boss, that if you're doing something you don't want your mother to read about in the newspaper, you probably shouldn't be doing it.

As near as I can gather, the seven justices decided not to hear lawyer / publicity hound Geoffrey Fieger's case, in which he complained about being punished for exercising his right of free speech.  (See post 144.)   Some, at least, of the justices had a serious conflict of interest - that is, had it in for Fieger for reasons unrelated to his disciplinary case - and were ethically obliged to disqualify themselves from hearing the case, according to their colleague Elizabeth Weaver. 

Weaver documents some of the instances here, in footnote 1 beginning on page 27 of this pdf.  I don't think anyone reading these examples can have much doubt: she's absolutely right.  During their campaigns, the justices in the majority ran ads singling out Fieger by name.  They came very close to making an explicit promise to rule against him.

Those justices  rushed through an administrative order prohibiting Weaver from releasing her dissent in the Fieger case -  which is pretty much the same as saying, "She's right, you know."  This is the order, quoted here in its entirety:

All correspondence, memoranda and discussions regarding cases or controversies are confidential.  This obligation to honor confidentiality does not expire when a case is decided.  The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC [Judicial Tenure Commission] or proper authority.

What's immediately striking about this order is the incompetence of its draftsmanship.  Imagine what the pooh-bahs of the Michigan Supreme Court would say about a criminal statute that did not say who it applied to, did not define its critical terms (what does it mean to "honor confidentiality"? bow down to it?), or even specify what penalties would be imposed for violating it.  Talk about void for vagueness. 

The second striking thing is: They wouldn't need to promulgate a special rule to protect their good reputation if they deserved it.

Michigan's political commentators don't know what to make of it all.  The Detroit News tried the jaded-realist line, declaring that "Fieger's complaint that he can't get a fair shake from them is a problem of his own making," because he's a Democrat and a majority of the justices are Republicans.  Really, I'm not kidding - the paper's editorial board really said  that. 

All that stuff Weaver wrote about free speech, and open government, and basic fairness - that's just "overwrought".  Why, if the News itself were, like Fieger, subject to punishment for using words protected by the first amendment, or if it were, like Weaver, the subject of a prior restraint prohibiting it from exposing government wrongdoing - well, of course the paper would bite the bullet, take its medicine, and open its checkbook.  Of course.

(For you word-watchers, note the paper's scrupulous observance of the Dictionary of Newspaper Cliche.  The word "overwrought" is to be used in editorials only to describe an opinion by a female judge.  If the person wearing the black dress has a Y chromosome, the correct adjective is "thundering.")

Meanwhile, Michigan's reasonable-guy, good-government columnists seem unable to believe that a majority of four justices would knowingly violate the United States Constitution merely to conceal from the public their own lack of ethics, although Ron Dzwonkowski of the Free Press points out that no one can prevent the from violating the  Constitution if they want to. 

The lesson is clear.  Some things are greater than the United States Constitution.  And among them are any four justices of the Michigan Supreme Court.