Two years ago, the Michigan Supreme Court was widely viewed as an embarrassment to the state. Eyes rolled as judges personally attacked one another.
The University of Chicago Law School issued a study ranking the nation’s state supreme courts — and Michigan’s was dead last.
The study found that the court was little respected for its decisions and the least independent from the business community of any such court in the nation. That may not be surprising, for this reason: Michigan, unlike most states, chooses its Supreme Court justices through partisan elections. Though independents can run, the political parties normally nominate candidates for the high court.
That once didn’t seem to make a great deal of difference. But things changed as the parties became more polarized. Millions began to be spent on high-court contests. By the turn of this century, decisions often were made along partisan lines. A solidly conservative “Engler Four” majority often ignored the doctrine of stare decisis — the custom of normally respecting legal precedent — and began vigorously reversing earlier decisions.
That wasn’t the worst of it. Even those who ideologically supported what the court did had to wince at the spectacle of Michigan Supreme Court justices publicly fighting and trading personal insults. And although the court is fiercely partisan, the justices fighting were all Republicans.
Chief Justice Cliff Taylor and Justice Elizabeth Weaver were the main offenders, although Weaver also feuded with the other three GOP justices: Maura Corrigan, Stephen Markham, and Robert Young Jr. The two Democrats on the court — Michael Cavanagh and Marilyn Kelly, mostly kept their heads down.
Then, in an astounding upset, Taylor was turned out of office by a landslide in November 2008, when he was defeated by little-known Wayne County Circuit Court Judge Diane Hathaway.
A sitting chief justice had never lost. That left the state without a leader. Unlike the U.S. Supreme Court, where chief justices are appointed by the president for life, Michigan justices elect one of their own to serve as chief, normally for a two-year term.
Kelly decided to run. Republicans still had a majority on the court, but Weaver had gradually become more and more of an independent, and had little love for her colleagues. She crossed party lines, and on Jan. 8, 2009, Kelly became chief justice of the Michigan Supreme Court, the fifth woman to hold that position.
That achievement capped a rather remarkable career. But she says prestige wasn’t the main reason she wanted to run, nor was it the money; the chief makes the same annual salary as other justices: $164.610.
She wanted to improve the system.
Kelly has been serving the state for half a century, as a teacher, state board of education member, court of appeals judge, and, finally, Supreme Court justice, and wants most of all to make the system work better. “I am most concerned that the people feel the court system welcomes them and that they have rights there,” she says.
“If you go into a hospital, you’ll often notice by the elevator a clear statement indicating what your rights are, that you’re entitled to have answers to your questions, and to be treated with dignity and respect, and, in many ways, that should be true with the courts.”
She wants a poster saying that in every courthouse in the state. She also says she wants to “try to attack … one of the biggest problems in the legal system, which is that it’s just too expensive for most people — we need to find ways to supply more free legal aid.”
Michigan’s chief justice is happy to speak about those topics. But she’s also quietly working hard to restore collegiality on the court.
“It’s a matter of huge concern to me,” Kelly says during an interview in her spacious office in Cadillac Place (the former General Motors headquarters in Detroit’s New Center).
Though well-appointed inside, the exterior doors are unmarked, a sign that we live in an era punctuated by occasional terror.
The Chief, as her aides call her, manages to be simultaneously intense and poised. (“She’s always unfailingly gracious,” says Janet Welch, executive director of the State Bar of Michigan.)
Slight, blond, and standing a bit taller than 5 feet, 4 inches, she has the appearance of an athletic woman in her late 50s. She is an avid skier and scuba driver. But it’s startling to learn that she is, in fact, 72.
Startling, that is, unless you know her mother, Evelyn Cogan, who lives independently and finally retired as a volunteer reading teacher three years ago — when she was about to turn 100.
“I’m very proud of Marilyn,” says Cogan, now 103. “But this didn‘t happen by accident. She worked very hard for it.
“She was not only right for the job, she had the will to go after it, which I, of course, encouraged.”
In many ways, Kelly has a more complex job than the chief justice of the United States. “The Michigan Supreme Court also has the task of supervising and disciplining the other courts in this state,” she says. “We set the example for the rest of the judiciary and the lawyers in this state, and if we tell them they have to treat each other with dignity, and we aren’t treating one another that way — we can hardly expect them to take the message very seriously.”
Kelly knew she could do little about the ideological differences. But she thought there were improvements she could make. “I picked up some of the traditions of the United States Supreme Court,” she says. “[For example], we’ve set up our lunchroom just for justices. We used to eat in a less private way. And we have tablecloths and stemware and silverware and nice dishes and a nice catered lunch. Right there in the hall of justice.
“We don’t talk about cases and the business of the court. Those are the rules. And it makes for some nice, civil, appropriate behavior,” which, she says, “does spill over into our meetings, even though one might not expect it.
“I’ve also encouraged justices to spend some time with one another before meetings. I think there’s a tradition in the U.S. Supreme Court of justices shaking one another’s hands before they sit down to adjudicate matters. While I haven’t urged that, I have urged them to simply take a minute with some coffee or tea and just chat with one another. And it has had some beneficial effect.”
Kelly was born on April 15, 1938, to parents who came to Detroit from small towns in northern Michigan. Her father, Ralph Kelly, was a stationary engineer. Her mother, born Evelyn Walter, was a homemaker from Suttons Bay.
The youngest of three children, she had drive from the start. Her first love was the French language. In the 1950s, an era when women typically attended college to become teachers, she graduated from Eastern Michigan University and then studied at the Sorbonne in Paris for a year.
From there, it was on to a master’s degree at Middlebury College in Vermont, then to teaching in Grosse Pointe.
She also cared about public service. Bright and stunningly attractive, in the idealistic aftermath of John F. Kennedy’s New Frontier she became interested in making the world a better place. The Michigan Democratic Party nominated her for a seat on the state school board in 1964.
She was 26, and many viewed her as too young for the job. Yet that was the year of Lyndon Johnson’s historic landslide, and she was swept to victory. “It was a wonderful opportunity for me to not only try to contribute, but to learn about government,” she says.
She quickly learned that, in order to get something done, a legal background really helped. “It became clear to me that it was a fascinating area, the law was,” Kelly says. “Though I was fascinated by French, it struck me as much more pertinent.”
That’s not to say she wasn’t a major player on the state board of education. She served 12 years; recruited Annetta Miller, who was 17 years her senior, to run for the state board. Miller, now a member of the Wayne State Board of governors, says, “She worked very hard to do all she could to improve K-12 education.
Kelly, meanwhile, went to law school at Wayne State University where she was, as John Mogk, one of her professors, recalls: “A very bright student; brilliant in class, very much engaged.”
Along the way, she married Richard Stout, a dairy farmer who was active in agriculture issues and Democratic politics. The marriage lasted 28 years, until he died unexpectedly during her second campaign for the Supreme Court. She was devastated.
“He had always been so supportive, and I knew he would want me to continue, so I did,” Kelly says. Some time later, she met Dr. Donald Newman, a family practitioner from Southfield, at a dinner party, where they compared notes on their elderly parents.
They were married 10 years ago. Neither has children, and they devote a fair amount of their energies to their careers — and McDuff, an award-winning champion West Highland White Terrier, with a slew of show and obedience titles under his ruff.
They also have an active social life. “The family joke is that, if there’s a voter in the room, we don’t leave,” Newman says.
After law school, she practiced for years before being elected to the Michigan Court of Appeals in 1988, and then won a seat on the Michigan Supreme Court eight years later, after having been demolished by Dorothy Comstock Riley in an earlier attempt.
Laughing, she tells how she was brought down to earth the day after she was first elected to the appeals court. “I went to work and got on the elevator, and there was a youngish man, and we chatted. Suddenly, he said, ‘I know who you are; you were just elected judge! My son voted for you!’
He looked a little young, so I asked, ‘How old is your son?’ Four years old, he said. I want him to be a good citizen, so I took him with me to the voting booth. I voted for all the important candidates, and then I turned it over to him and he voted for you!
“That was a real ego-buster!”
What has been more satisfying to her ego is some of the progress she has made since becoming chief. Even Justice Corrigan, one of the so-called “gang of three” who voted against her, says, “While Chief Justice Kelly and I disagree about many matters, we get along personally. She has the best interests of the court at heart.”
She also is mindful of the public interest, and has pressed to make the court less mysterious, opening up its administrative hearings. “It’s not always easy for the court to do it that way, but it’s better for the people,” she says. “I believe in the public’s business being done in the light of day.”
U.S. Supreme Court justices are appointed for life, and the last chief, William Rehnquist, died on the bench. But in Michigan, justices can no longer run for re-election after they turn 70. And chief justices can be re-elected to office regardless of age, as long as they’re currently holding a seat.
That means Kelly must retire when her second eight-year term expires, in January 2013 — a coming sea change she’s beginning to think about. Before that, she hopes to win a second two-year term as chief justice next year, and keep pushing Michigan’s courts to improve.
After that, she might surprise you. “I’ve always been interested in writing,” she says. “The most obvious thing is to write about the law, having been involved in it for a long time, and it occurs to me sometimes that some of the cases before us would make a wonderful novel.
“They defy logic. They defy common sense — one believes that only a novelist could create them.”
If she truly has her mother’s genes, Michigan’s chief justice could have a long literary career.
Lessenberry is a Huntington Woods-based freelancer. E-mail: editorial@hourdetroit.com.
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