Shifting majority on state’s top court could spell big changes for Michiganders’ rights

Conservative judges could score a majority on the Michigan Supreme Court next year—and their decisions would carry some big ramifications for Michiganders’ basic civil rights.

MICHIGAN—Michigan voters are tasked with making consequential decisions at the polls in this year’s general election, including picking two candidates who will serve on the state’s highest court and wield considerable influence over a broad array of legal issues across the state.

State Supreme Court Justice Kyra Harris Bolden, who was appointed in 2022 by Gov. Gretchen Whitmer, was nominated by the Michigan Democratic Party to finish a partial term that expires in 2029. She is facing off against Republican-backed candidate Patrick O’Grady.

Democrats also nominated Kimberly Ann Thomas to run for a full, eight-year term on the bench this year. She’s running against Republican-backed candidate Andrew Fink.

Despite the party nominations, state Supreme Court elections in Michigan are technically nonpartisan—meaning all four candidates will appear without a party label on the ballot.

Still, Democratic-backed justices currently hold a 4-3 majority on the Court. Republican victories could flip control of the court, while two Democratic wins would yield a 5-2 majority. And with crucial decisions involving reproductive rights, abortion bans, gun safety laws, and election integrity all making their way to state supreme courts across the country in recent years, whoever wins will have a hand in making some big decisions for the people of Michigan.

Here are four big issues that have landed in the state’s top court in recent years, could come up again in future cases, and pan out very differently under a more conservative slate of judges:

1. Reproductive Rights

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.

For example, in September 2022, after a ballot initiative to enshrine reproductive rights into the state Constitution was 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.

In a dissent, the Court’s Republican-backed judges disagreed with the ruling. And had they had a majority on the Court, they could have blocked the constitutional amendment from reaching the ballot, which could’ve ultimately jeopardized the future of abortion access statewide.

It’s not just a theory; in other states with more conservative state Supreme Courts, abortion rights have been steadily chipped away since the US Supreme Court overturned Roe v. Wade.

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.

But because the judges who serve on the Michigan Supreme Court are technically nonpartisan and do not necessarily subscribe to the agenda of one political party or another, it’s not always simple for voters to identify which candidates align most closely with their personal beliefs.

Endorsements, however, can offer clues. And when it comes to protecting access to abortion, reproductive rights groups are throwing their full support behind Bolden and Thomas.

On the other side of the aisle, the ACLU of Michigan has sounded an alarm over O’Grady’s endorsements from anti-abortion groups, as well as Fink’s record as a state lawmaker—which included sponsoring state-level legislation that sought to ban abortion after fetal viability.

During a recent debate, O’Grady also introduced himself as a Christian man who, if elected, would adhere to a strict, textualist interpretation of the state Constitution as a “rule of law judge.” When asked about his legal philosophy, Fink also described himself as a “constitutional conservative.”

And that’s the same principle that guided the majority on the US Supreme Court that overturned Roe and peeled back the constitutional right to abortion for millions of women nationwide.

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.

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.

2. Workers’ Rights

Legal protections for working families and the middle class have also frequently fallen under the purview of the Michigan Supreme Court—often with vastly different opinions depending on whether the justice writing them is backed by the state’s Democratic or Republican parties. 

For example: In 2022, the Court took up a case involving a ballot measure that sought to raise the state’s minimum wage and expand paid sick time for workers. In a 4-3 decision, the Court ultimately ordered the state to set a new wage schedule that will lead to raises for thousands of workers, as well as require most employers to offer some form of paid time off for their staff.

Ex-President Donald Trump and Republican lawmakers have repeatedly bashed labor unions while supporting tax cuts for the nation’s largest and wealthiest corporations. Similarly, the Republican-backed judges on the Michigan Supreme Court also sided with business interests over workers by opposing this year’s decision to increase the state’s minimum wage. 

In a dissent, the Court’s conservative judges argued there was “no support in the Michigan Constitution, or in the history, tradition or case law” for the Court to get involved with the issue.

3. Voting Rights

Beyond reproductive rights, a more conservative, Republican-backed majority on the state Supreme Court may also be more willing to adopt a more restrictive view on voting rights.

For example: In addition to trying to block Proposal 3 from making the ballot in 2022, the Republican-backed judges on the state Supreme Court were also vehemently opposed to allowing Proposal 2 on the ballot, which sought to enshrine stronger voting rights into the state Constitution. 

In a 5-2 decision, the state Supreme Court ultimately ruled to place the amendment on the ballot—and voters ultimately passed those constitutional protections into law. But a more conservative majority may have succeeded in blocking that issue from going to a vote, which could’ve potentially delayed or prevented the state’s constitutional protections for voting rights.

“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 said. “That telegraphs that they’re going to take a very narrow, potentially restrictive approach that will take away rights rather than adding rights.”

4. LGBTQ Rights

Conservative beliefs can stretch across the legal spectrum—including for LGBTQ rights.

For example: In 2022, the Michigan Supreme Court decided to take up a case that centered around a Michigan company that had refused to do business with a same-sex couple and a transgender woman—namely to decide whether the state’s civil rights laws specifically prohibited discrimination on the basis of sexual orientation and gender identity.

In a 5-2 opinion that has since been celebrated as a victory for the LBGTQ community, the state Supreme Court found the state’s non-discrimination laws clearly prohibit discrimination on the basis of sex—and that they should also be interpreted to include sexual orientation and identity. 

Despite a dissenting opinion from Republican-backed judges who had argued for a more narrow, binary view of gender identity, the decision from the Court’s Democratic majority has resulted in Michigan now having some of the country’s most comprehensive protections against discrimination in employment, housing, education, public accommodations, and public services.

A more conservative, textualist slate of judges on the state’s top court could’ve easily arrived at a different, more consequential decision for civil rights, according to the ACLU of Michigan.

“We’ve gotten so many in-roads [to protect civil rights] in the last six or seven years,” Michigan ACLU Political Director Merissa Kovach told The ‘Gander earlier this month. “But we’re recognizing the price of all that work is to remain vigilant. We need to preserve those rights.”

READ MORE: 10 cases that show how the Michigan Supreme Court shapes your rights 

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