‘Under-the-radar’ race for Michigan Supreme Court has huge stakes, ACLU says

The ACLU of Michigan is launching a new, $2 million advertising campaign to ensure Michiganders understand the high stakes of this year’s state Supreme Court election—particularly for the future of abortion access.

MICHIGAN—Last month, at a church in rural Livingston County, the two Republican candidates running for the Michigan Supreme Court took a moment to explain how they would go about making decisions, if they were to be elected this year to serve on the highest court in the state. 

Longtime Circuit Court Judge Patrick O’Grady introduced himself as a devout Christian who would adhere to a strict, textualist interpretation of the state Constitution as a “rule of law judge.”

“Everyone needs to stay in their lane. That’s the best way in layman’s terms, right? These lanes have been created by our founding fathers. Let’s stay in ’em,” O’Grady told the small crowd. 

State Rep. Andrew Fink, a member of the right-wing Federalist Society, also said that he subscribes to a similar, “constitutional conservative” philosophy. 

“The best way to describe what it means to be essentially a constitutional conservative, what it means to try to follow the Constitution,” Fink said in response to a question about his beliefs.

This year, O’Grady is facing off against incumbent state Supreme Court Justice Kyra Harris Bolden for a partial term that expires in 2029 and Fink is running against Democratic-backed Michigan Supreme Court candidate Kimberly Ann Thomas. Democratic-backed justices currently hold a 4-3 majority. Republican victories could effectively flip control of the Court.

And ahead of Election Day, officials at the American Civil Liberties Union (ACLU) of Michigan are sounding an alarm over Fink and O’Grady’s recent remarks—and what it would mean for civil rights in Michigan, should a more conservative slate of judges be elected to take the bench.

In an exclusive interview with The ‘Gander, Michigan ACLU Legal Director Bonsitu Kitaba said Michigan voters should be “very careful” with the concept of constitutional conservatism this year—especially given the damage that judicial philosophy could have on their civil liberties.

“I think what [O’Grady and Fink] are trying to telegraph, especially when they couple those phrases with conservatism, is they want to take a narrow view of what the Constitution means and what civil rights mean to people. And I think voters have to be very careful when they’re assessing the credentials and philosophies of these judges when they say that,” she said.

“Someone who takes a conservative view of those rights, I think, should be looked at as potentially not being willing to uphold all of the protections and all of the rights that our Constitution was intended to uphold,” Kitaba added. “That telegraphs that they’re going to take a very narrow, potentially restrictive approach that will take away rights rather than adding rights.”

What is textualism?

Textualism, which can also be described as originalism or constitutional conservatism, is a philosophy that guides how judges can interpret laws and make other decisions in the courtroom. At its core, it asserts that laws should only be interpreted according to the plain meaning of the text—and not the actual intent of those who wrote or passed them into law. 

The philosophy also dictates that modern readings of the US Constitution should depend on the original meaning of the document—even though it was written during a time when only white, land-owning men had any civil rights at all. And in decisions in courtrooms across the country, the legal theory has been used to threaten the safety of women and bodily autonomy at large.

Perhaps the most glaring example: 

Textualism is the exact principle that guided the majority on the US Supreme Court that overturned Roe v. Wade and peeled back the constitutional right to abortion for millions of women. Because the word “abortion” isn’t literally included in the text of the Constitution, then reproductive health care cannot be considered a “fundamental constitutional right,” Justice Samuel Alito wrote in writing for the majority in Dobbs v. Jackson Women’s Health Organization.

And while the Michigan Supreme Court has repeatedly ruled to protect abortion rights, that could soon change if voters elect right-wing judges to take over the bench, Kitaba said.

“There could be situations down the road where we don’t have an explicit protection or right under the Michigan Constitution, and then these justices would be tasked with trying to interpret the Constitution,” Kitaba said. “The Constitution is a living, breathing document that evolves over time as people’s protections and views about their protections evolve. … We want to make sure that [Michigan Supreme Court justices] are coming into those positions with that lens.”

Voter Education

To help ensure Michigan voters are aware of the lasting implications of this year’s state Supreme Court election, the ACLU—through its political action committee—is spending up to $2 million on a series of statewide advertisements (mostly on the radio) through October. 

Michigan ACLU Political Director Merissa Kovach said the campaign marks the first time that the ACLU is putting some significant cash behind the Michigan Supreme Court election. And she hopes it signals the seriousness of the decisions that Michigan voters are facing this year.

“The ACLU has been very invested in doing everything we can, using every tool available to us at all of the levers of government, to protect and expand civil rights and liberties—especially in the spaces of abortion and LGBTQ rights and voting rights,” Kovach told The ‘Gander. “We need to preserve those rights right now and ensure that voters understand the role the court plays.”

Campaign finance laws prevent the ACLU from promoting any specific candidate in the election. So instead, the new ad blitz is simply focused on “educating” voters about their choices—and holding Republican-backed candidates accountable for their records and stances on key issues.

“We know Kyra Harris Bolden and Kimberly Ann Thomas are endorsed by organizations that support abortion rights,” Kovach said. “Patrick William O’Grady and Andrew Fink have been endorsed by organizations that oppose abortion rights. So, we’re lifting up that information.”

What’s at stake?

The state Supreme Court is the highest legal authority in the state, and it wields the power to decide whether laws are constitutional and whether voter ballot initiatives can move forward. The Court also has the power to interpret state laws and how they apply to Michiganders.

Democrats and Republicans are likely to rule differently on different subjects. And with crucial decisions involving reproductive rights and abortion bans making their way to state supreme courts across the country in recent years, whoever wins this year’s election would have a hand in making some crucial decisions for the people of Michigan, if and when those cases resurface.

For example, in September 2022, after a ballot initiative to enshrine reproductive rights into the state Constitution had been blocked by Republicans on the state Board of Canvassers, the Michigan Supreme Court stepped in to approve the initiative—and it was ultimately among the only reasons why Michiganders could decide on abortion access via ballot measure in 2022.

Decisions in other states have also shown the power that state Supreme Courts can wield.

In Arizona, for instance, the state Supreme Court upheld a 160-year-old law that banned abortion unless the patient’s life was in danger, though that law has since been repealed. In Alabama, another state Supreme Court decision found that frozen embryos were people and (temporarily) caused in-vitro fertilization (IVF) providers to stop offering the treatment. The Florida Supreme Court has also upheld a strict abortion ban enacted by Republican lawmakers.

Kovach said that electing state Supreme Court candidates who support advancing—rather than restricting—Michiganders’ rights will also be critical for protecting the state’s LGBTQ community. 

For example, in July 2022, the Court ruled that Michigan’s anti-discrimination law also applied to discrimination based on sexual orientation and gender identity. A more conservative, textualist slate of judges on the state’s top court could’ve easily arrived at a different decision, she said.

“We’ve gotten so many in-roads [to protect civil rights] in the last six or seven years,” Kovach said. “But we’re recognizing the price of all that work is to remain vigilant. We need to preserve those rights. … These [state Supreme Court] races are typically low profile and sort of under the radar, but they can have such a profound impact on our day-to-day lives and our rights.”

In addition to issuing a warning to voters about O’Grady and Fink’s “textualist” approach to decision making, the ACLU is also shining a light on Fink’s record as a state lawmaker—which includes sponsoring state-level legislation to ban access to abortion after fetal viability. 

“The main comparison that we are seeing between the candidates that we want to lift up is about abortion. We’re seeing that is what is most important to voters,” Kovach said. “It’s always tricky with judicial candidates because they have different backgrounds, but you can sometimes glean [details] if they’re a current or previous state elected official. They have voting records.”

Although the ACLU isn’t issuing a formal endorsement in this year’s Michigan Supreme Court election, other advocacy groups that support abortion access and LGBTQ rights are speaking out in support of both Bolden and Thomas—contending they would be far more likely than their Republican-backed challengers to protect and further expand Michiganders’ civil rights.

“We’ve seen time and again that state courts are on the front lines of our fight for reproductive freedom. Michiganders need justices they can trust to uphold their rights—that’s why we need Bolden and Thomas on the court,” said Reproductive Freedom for All President Mini Timmaraju.

The ACLU is also launching voter education initiatives on state Supreme Court candidates in other states—including spending $1.3 million in Montana. Kovach said another $300,000 will be also spent on “educating” voters about a series of contested state House races in Michigan.

“We are a nonpartisan organization. We can’t endorse or oppose candidates, but what we can do is educate voters on where certain candidates stand on the ballot when it comes to civil rights and liberties and hope that [Michiganders] can make an informed decision,” Kovach said. “It’s imperative that we continue to build on that success and protect the rights that we have.”

READ MORE: Trump endorsement could put abortion back on the ballot in Michigan

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