The decisions and activities of the state Supreme Court can seem hidden from view of normal voters. It’s not often that they make the news. That’s why my friend Alisha wanted to know about it. And this week we speak about it with Cliff Taylor, a former chief justice of the Michigan Supreme Court for the Overton Window podcast.

Alisha was curious about whether state supreme courts have a greater impact on citizens lives than the United States Supreme Court.

“Both of them have a lot of effect on the way that citizens in their state live,” Taylor says, noting that the U.S. Supreme Court usually has a stronger say on more fundamental issues. “But probably for day-to-day things — whether or not you can have a handgun, whether or not you can do something with tort law—the state Supreme Court probably has a greater impact.”

There are 50 state Supreme Courts and they do operate different. The composition of courts will change from state to state. “The United States Supreme Court has changed a lot over the years,” Taylor says. “In Michigan, we’ve got seven but it’s been lower at times.”

“The important thing is that you’d better make them an odd number,” Taylor says, “You’ll get splits in how the case is to be decided, and you want to have an odd number so that you get a winning side.”

Justices in each state vary widely in their decisions on similar issues. “The individual state courts do have different opinions on these things and in large part it depends on who is serving.”

Taylor sees this as a problem and cites Supreme Court Justice Antonin Scalia. “He led a movement, which was an important movement, and that was that you should, to the degree possible, minimize the different results you get because you have different people hearing it. In other words, a case should produce the same outcome in every state supreme court if the system is working correctly,” Taylor says.

To figure that out, judges should focus on interpreting what lawmakers intended the law to mean, which ought to be subject to less division among people who have different philosophical understandings. “What’s easier to disagree about is what you would like it to mean,” Taylor says.

He cites a case from years ago where the legislature passed a law to allow people to carry concealed firearms. The law also authorized the state to spend some more money to educate people about firearms. Activists wanted to collect enough signatures to put this law before voters in the hope that they would annul it. According to the state constitution, however, a law that authorizes more spending cannot be subject to a referendum. Taylor:

I was of the view that this was an appropriation and therefore there couldn’t be a referendum. The opposing side was outraged by the fact that the Legislature, they thought, had put this million-dollar appropriation in the bill only to preempt the authority of the people to have a referendum on whether or not they wanted this statute. And my position on this was that it didn’t make any difference what the motive of the Legislature was. You’re never going to know it in the first place. But even if you did know it, that’s their power and when they decide to put in an appropriation, that’s what it means.

Every newspaper editorial board in the state opined against his judgment because they didn’t like the ability to avoid a referendum. “But that was not what we were asked to decide,” Taylor says. The question was whether a referendum could be called on a bill that authorized spending.

When asked whether he paid attention to the popularity of an issue, Taylor says, “I know this sounds terrible, but I wasn’t keeping an eye on where things were going. My job was very narrow and was to determine if this statute said X or said Y. Or maybe better, did it say X or anti-X. Whether it was a good statute or a bad statute was not my business.”

He says that while justices aren’t under the same kind of political pressure that other lawmakers face, the structure of court decisions themselves puts bounds on what the branch can do. They’re not judging the popularity of laws, they’re interpreting how it fits with the constitution.

There’s also a simple way to draw the Supreme Court’s attention to a case and a question of law.

“If the lower courts are divided in how a statute should be interpreted — let’s say the courts in Detroit are inclined to view X on a statute and the courts in Grand Rapids are inclined to the opposite position — you want to get that resolved so that you get the same justice in Grand Rapids as you do in Detroit,” Taylor says.

He also wanted to clarify some of the drama that goes on when judges are hearing a case. “I think the most overrated thing in the American system in oral argument. Most good judges know what they’re going to do,” Taylor says. “It’s rare that anything new is said in oral argument — not never, but very rarely does something new come up in oral argument.”

Check out the conversation at the Overton Window podcast.

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