This transcript has been lightly edited for clarity.
Hello and welcome. I’m David Beard, contributing editor for Daily Kos Elections.
And I’m David Nir, political director of Daily Kos. The Downballot is a weekly podcast, dedicated to the many elections that take place below the presidency, from Senate to city council. You can subscribe to The Downballot wherever you listen to podcasts, and please leave us a five-star rating and review.
We’ve got a very special guest joining us today. Who do we have, Nir?
On today’s podcast, we are going to be talking with Justice Richard Bernstein of the Michigan Supreme Court. Justice Bernstein is up for reelection this November, defending the narrow 4-3 majority that Democrats have on the court. And also, he is the first blind justice in the court’s history. We also are going to discuss this week’s primaries, including a MAGA sweep in New Hampshire, and Lindsey Graham’s inexplicable decision to force Republicans to talk about his national ban on abortion. Great show coming up. Please join us.
Tuesday wrapped up the 2022 primary season with elections in New Hampshire, Rhode Island, and Delaware. And in New Hampshire, Beard, it was kind of the same old story for the GOP establishment, huh?
Shockingly, more moderate or establishment, we don’t really want to call them moderate, but establishment GOP candidates ran against Trumpist candidates, and the Trumpist candidates won. Of course, some people will go and try to blame Democrats somehow for all these Trumpist candidates continually winning GOP primaries. But ultimately, I think Republicans need to look inside, look at themselves, as to why this keeps happening. But let me run through the races.
In the Senate race, where incumbent Democrat Senator Maggie Hassan is going to be facing retired Army Brigadier General Donald Bolduc, who narrowly won over the more establishment candidate, state Senate President Chuck Morse. And then, similarly in the first and second district, Trumpist candidates like Bolduc also won. Karoline Leavitt was the more Trumpist candidate in the first district. She overcame very heavy spending directed at her to beat the 2020 Republican nominee Matt Mowers, who was unable to hold on for a rematch against Democratic incumbent Congressman Chris Pappas. And finally, in the second district, which is in western and northern New Hampshire, former Hillsborough County Treasurer Robert Burns defeated Keene Mayor George Hansel, again, by a narrow margin, to face Democratic incumbent Annie Kuster.
So all of these races are expected to be close. Biden won all of these districts and the state overall, but narrowly. And they were certainly seen as very prime pickup opportunities. But with these more Trumpist extreme candidates who have some really crazy past statements in their history that Democrats are going to go after them on, it makes it much tougher for the Republicans and much more advantageous for the Democrats to hopefully hold on to these seats in November.
I want to stress that as unhinged as Don Bolduc is, and he really is truly out there, he could still win. New Hampshire is an extremely swingy state. And not only that, Maggie Hassan in 2016, when she won, her victory came by just 1,000 votes. It’s one of the closest Senate elections that we’ve seen in quite some time. So we can’t get cocky about this. That said, Republicans are going to have a hell of a time convincing New Hampshire voters that Don Bolduc is a reasonable guy, and Hassan has already gone straight out the gate. She immediately launched attack ads the day after the primary, hitting Bolduc. And abortion, once again, is going to be center stage.
The other key primary that took place earlier this week on Tuesday was in Rhode Island, where incumbent Democratic Governor Dan McKee, who had been lieutenant governor and was elevated to the governorship in March of last year, held off a number of challengers in what ended up a pretty close race, including former CVS executive Helena Foulkes, who got second place and was only a few points behind McKee. And then, with another 26% was Secretary of State Nellie Gorbea. So it looked like Gorbea was going to be the main rival for McKee for most of the campaign, but Foulkes just spent an enormous amount of money late as the race closed, but her surge really just came too late. And you can actually see that she actually won Election Day ballots, but took third place among the early and mail voters who may not have seen her as a prime contender, and allowed McKee to slip through and will likely now serve a full term, as he’s favored in November.
The other thing we have to talk about this week is the absolute bomb that South Carolina Senator Lindsey Graham dropped in the laps of his colleagues on Tuesday when he introduced legislation proposing a national ban on abortions at 15 weeks. And this generated tremendous consternation and unhappiness from within the GOP ranks. Really, the last thing Republicans want to be talking about right now is abortion, and the even laster thing they want to be talking about right now is a ban on abortion. And Lindsey Graham just ensured that this topic will get even more life and get even more play and that there will be even more headlines that feature the words “Republican national abortion ban.” And sure enough, there have been plenty, along with lots of articles talking about how Republicans are in disarray.
Some Republicans have embraced this, but many others have totally stiff-armed Lindsey Graham. Some have refused to talk about it. Some have said that they don’t think Graham should have introduced this. Various consultants, both on the record and off the record, have just moaned in agony at having to deal with this issue now. But the amazing thing is some Republicans in competitive races have jumped on board, and that includes Marco Rubio in Florida; it includes Ted Budd, who is a member of the House, but has signed on to companion legislation in the lower chamber. And it also includes at least three Republicans in potentially competitive House races: Don Bacon in Nebraska’s 2nd Congressional District, and Ashley Hinson and Mariannette Miller-Meeks, who both represent districts in Iowa. We could even see more House Republicans sign on to this legislation in the coming days and weeks.
We’ll also have to see what other Republican senators, especially Wisconsin Senator Ron Johnson, decide to do with this one. But no matter what, every single last one of them is going to be forced to answer questions about this. And even if they take a position opposing Graham’s legislation, specifically every Democratic ad maker across the country now gets to run an ad about how Republicans in Congress want to ban abortion. And the key thing to note here is that this bill would only affect blue states, because the red states have already been passing bans at 15 weeks or much earlier, or total bans. So this is really about owning the libs. I think Lindsey Graham is trying maybe to motivate the base with this one. It’s still really hard to figure though, and it’s already blown up in their faces, because Republicans are quite open in saying they don’t want to be talking about this. And yet, they have no choice.
It is a really inexplicable decision by Lindsey Graham. And I think it really goes back to the ideas, the Republicans are really challenging the idea of how bad of a campaign can you run and still maybe get away with it in a bad midterm year? We’ll see if they can do it, but they are trying their best to run the worst campaign possible to see if they can still pull it off. And this recent coverage of Graham introducing this bill reminded me of an article that I had saved from this past June, just a few months ago, from New York Magazine, by Ben Jacobs. And it was titled “Things Will Be Fine: GOP Insiders Doubt Overturning Roe v. Wade Will Haunt Them in the Midterms.”
Was this article from before or after Dobbs?
It was from just before. It was after the leak, so everyone sort of expected that Dobbs was coming, but it was before the decision was actually handed down. And this reporter, Ben Jacobs, interviewed a number of GOP operatives to see what they thought about the future, where Roe was going to be overturned, and how that would affect the GOP. And they were very blasé about it. I’m going to read you a couple quotes from these. These are all anonymous, but a few quotes from these GOP operatives: “People don’t notice abortion on a daily basis,” the operative argued. “They notice how much bacon costs for their kids and how much gas costs to fill up their car.” That’s one of the more reasonable ones. Then we’ve got, “The problem that Democrats have here is that people who really care about abortion and are single issue pro-choice voters are already all voting Democratic.”
Well, that doesn’t seem to be the case, as we’ve seen in these recent special elections. There seem to be plenty of voters who care about abortion, who are pro-choice, and who maybe wouldn’t have been voting Democratic, who are now. Then we’ve got the quote, “A bunch of pink-haired women lighting fires in the streets was not going to motivate moderate pro-choice women to vote Democratic.” This just goes into the whole idea of Republicans having these wild ideas about what Democratic activists are actually like. We all know a bunch of very active pro-choice women and they work extremely hard on campaigns. They don’t go and light fires in the street. I don’t even know sort of what they’re referencing there.
And then the last one I want to quote is, “’What it’s going to do is crystallize dishonesty and lack of integrity of the Democratic Party,’ they claimed. We are in a situation where Democrats are doing their best Chicken Little impression, and most people are going to find out their lives don’t change at all. AOC is the one being shown all over the news saying women’s rights are being taken away. Next they’re going to come after gay marriage and come after birth control. They’re not, nobody cares about that. And voters are going to see the sky isn’t falling.” Well, I would just say that a) they absolutely are coming after gay marriage and birth control, as we saw in Clarence Thomas’s concurring opinion. And b) it seems like a lot of people care about that, as we found out over the past few months.
The hubris and arrogance of these GOP operatives is really something, but also they just seem really stupid. And they’re obviously getting paid a lot of money. So I guess my advice to Republicans is keep paying these guys.
Yeah. We love running against these guys.
That does it for our weekly hits. Coming up, we are going to be talking with a fascinating, truly fascinating candidate on the ballot this November, Michigan state Supreme Court Justice Richard Bernstein. Please stay with us. With us today is Justice Richard Bernstein, who is a sitting Justice on the Michigan Supreme Court. And not only that, he is the first blind member of that court and he is running for reelection this November for an eight-year term. Your Honor, thank you so much for joining us.
Oh, it’s my absolute pleasure. Thank you so much for having me. There’s a lot going on.
We do have so much to talk about, but the first thing I would like to ask about is, you have been blind since birth, and I’d like to know how that has shaped and affected your work, first as a lawyer and now as a justice. And I should also add that I absolutely love your website URL. You totally lean into this: theblindjustice.com.
You know what, that’s the beauty of being the blind justice. Right? Because justice is blind, but ultimately on a more serious note, it really makes you a better judge because the best type of judge is the kind of judge who doesn’t have prejudice. And what is prejudice? Prejudice ultimately arises when you actually see someone, when you visualize somebody, and not being able to see, for all intents and purposes, allows for you to not prejudge. So I think for all intents and purposes, the beauty about being blind is that you ultimately live up to the symbol of the justice system, which as we all know, the symbol is a blind lady. And I think that’s really—the idea is that you should be blind to who comes in front of you.
But I think ultimately when you look at what it represents and what the meaning of it in a very intense fashion is that I think your question goes to, what is it that really makes a good judge? And my response to you would be that it’s all about struggle, it’s about adversity, it’s about challenge, it’s about hardship. The best type of judges are the judges who have to live a more difficult life, who are judges that understand what it means to really face struggle, what it means to be counted out, what it means to face difficulty, what it means to face discrimination. I just think at the end of the day, when you live a life of struggle, it ultimately allows for you to serve in this position better because you’re able to relate, understand, and appreciate the hardships, the challenges, and the difficulties of those who ultimately come before you.
And I think one other thing I love to throw in is that as a blind person, I’ve been blessed. I’ve had the opportunity of completing 25 marathons and a full Ironman competition. And the reason I mention that is because in order to do this job, you have to have resilience. You have to have an inner strength, and you have to have a sense of purpose and passion that guides you through this position. Because ultimately, for me to perform in this position, it takes a tremendous amount more effort.
So just to very quickly give you an example of what my day is like on the Supreme Court, ultimately we basically every Wednesday have about 25 cases that come before us, and conferences where all the justices gather and we decide, ultimately, the big questions that are going to affect people’s entire lives. We decide; we’re the court of last review for the state of Michigan. So for all intents and purposes, that means that if you’re facing a life sentence in prison, your case is ultimately going to come before us and we are going to be the absolute last word as to whether or not you’re going to spend the rest of your life in prison, or perhaps will you have the chance of getting a new trial. We’re the last word in all environmental issues. If you’re dealing with anything dealing with regulation, you’re dealing with utilities, you’re dealing with tax cases that can be billions of dollars, and you’re dealing with real tragedy, where you have a situation where a mother might never see their child again.
So when you’re dealing with cases that are this intense, people ask as a blind person, “How do you do your work? How is it that you do your job if you’re not able to see?” And for conference, when you have 25 cases, people will say, “Well, do you put the cases into braille?” And the answer is no, you cannot put these cases into braille because if I give you one textbook case, or textbook page, you’re going to give me 65 braille pages. So you can’t put a three-week murder transcript into braille. It’s just too voluminous. Then people say, “Well, can you use technology? Can you rely on your computer?” Well, the answer is no, because if I’m on my computer, I’m not able to engage with the other justices. So technology isn’t going to work.
So the way that I function in this position is every Wednesday, I commit to memory all 25 cases. Now I can’t memorize them word for word because that’s not physically possible, but I will know all of the key legal issues that are presented in each case. So by knowing all the key legal issues, what will happen is the commissioner will say, “Justices, we are now on case 18. Case 18 is a carjacking on Woodward Avenue that resulted in two homicides.” When I hear carjacking on Woodward Avenue resulting in two homicides, that’s my mental trigger, and I can recall the case in its entirety. Not word for word, but I know all of the key legal issues that I’m going to have to decide that day.
But there’s one more thing that I have to learn. Because we’re a common law system, I have to know all the common law cases that work in my position, in terms of that favor the position I wish the court to take, and I have to learn all the common law cases that work against my position. So I got to know all the cases that work in my favor, and I got to know all the cases that work against the position that I want the court to take so I can distinguish them.
And the reason I share that with you is because when you ask, what does it mean to be a blind justice? There’s no question it requires a lot more work. There’s no question it requires a lot more effort. But at the end of the day, and we can talk about this if you’d like, the reason that I do this job is because you really can make life better for people. You really can help people. And really when you ask any public servant why it is they do the work they do, you do this because you love people and you want to make life better for them.
So speaking exactly of helping people, I want to go back to what you were most prominently known for, before you became a justice, which were a number of suits that were centered around disability rights and enforcing those rights through the legal system against the city of Detroit, against Delta Airlines. Was that always what you wanted to focus on in your legal career? Or was it sort of a sense that people look to you as somebody, as a member of that community, to be that person who was representing them in those lawsuits?
So I’ve always been a person of faith, and getting through law school for me was unbelievably difficult. And I just remember, I went to Northwestern, and I just remember winters in Chicago, and you could just hear the wind as it would come off the lake. And I was struggling so much when I was in law school. It was just an immense struggle just to get through every day. Because again, everything takes me longer. If it takes you an hour to do something, it can sometimes take five times longer for me to do the same thing, because I’ve got to internalize and memorize. I just work slower. And I just remember going through school and just really struggling to get through it.
And it was just one night in particular, it was so cold. It was February in Chicago. And I just remember reaching up to the heavens, I remember praying to the Creator and I said HaShem, I said, “Look, if you give me the opportunity to become a lawyer, I will dedicate my entire professional career to representing people with disabilities and special needs, who otherwise don’t have access to legal representation.” And a promise is a promise. So if you make a promise, you have to adhere and keep that promise.
And so ultimately, miraculously, I was able to graduate from Northwestern. Even more miraculous, I was able to pass the Michigan bar. And then I went back to my family’s law firm, and I have a wonderful family, and I’m blessed to work with them. And I basically told my dad, and my brother, and my sister, I said, “Look, a promise is a promise. I made a promise to God that if I was given the chance to become a lawyer, I would dedicate my entire legal career to representing people with disabilities who otherwise don’t have access to our judicial system.” And I said, “So God came through on his part of the deal, which is he allowed me to graduate from law school and pass the bar. So now I have to adhere to this. I have to live up to my part of the deal.”
So our firm established our public services division. And within the public services division, we never charged for representation of paralyzed veterans. And ultimately, I was proud to work on behalf of our nation’s paralyzed veterans, and those were the folks that I represented. And I would focus on making sure they had access to things that would give them a better life. So public transportation was an absolutely critical thing. I mean, the first case that I took on was against the mayor of Detroit because the city was running buses with broken wheelchair lifts. About 50 to 60% of the fleet had broken lifts. So what was happening was you had veterans that were getting stuck in transfer points. And it wasn’t uncommon for veterans to have to spend the entire night sitting in a bus shelter because the buses that were going by had inoperable lifts. And that case went on for about seven years.
But I’m proud to say that ultimately, as a result, this set the standards for all public transportation providers across the country. So now whether you’re in New York, Chicago, Los Angeles, and you have those low floor kneeling buses, those buses came out of the Detroit bus case because it created the precedent, which is now implemented by cities all across the country. And it allows for people to use fixed thru transit in a way that gives our veterans an opportunity to go places, do things, and participate in the community.
The case that I was also very passionate about was, I used to be a professor at the University of Michigan. I’m no longer a professor there because I sued them, which usually is not the greatest thing for your job security, but what they were doing was wrong. Ultimately, you had a situation where the university had spent over $350 million on a new stadium, but what they were arguing was that the work that they had done was a repair and not an alteration. The reason that’s significant is, under the ADA [Americans with Disabilities Act], if you repair an existing structure, you don’t have to bring it into ADA compliance. If you alter it, you do. And so ultimately what the University of Michigan was doing was they were basically arguing that a $350 million stadium—what I constitute as a renovation, and the court found that to be the case as well—what they were arguing was that they were just repairing, that they were not altering, and that they were just putting in new benches. They were just putting in a new scoreboard. They were just putting in new bathrooms. They were just putting in new parking areas. They were arguing that, oh, well this is just a repair, a series of repairs.
And the reason that I had to get involved was ultimately, if the university had been successful with that argument, then what would’ve ultimately happened is, this would’ve had a catastrophic impact on all commercial facilities across the United States, because ultimately, let’s say you own a shopping center. What you would do is you would simply say, hey, we’re just making a series of repairs. We’re not altering it. So therefore, we don’t have to put all the money into bringing it into compliance.
So the reason I would take these cases—and they would go on for years—is because the veterans are the people that lead the way. And these cases, it was much more than just a stadium. It dealt with the whole issue of all commercial facilities. But more importantly, it went down to the idea that you had our veterans coming back from Iraq and Afghanistan, and they weren’t a part of the community. Because while everybody was going to the football game, they would be staying back in their dorm rooms. And it was having a huge impact on their recovery. Because if you don’t feel like you’re a part of the community, it makes it difficult for you to focus on your recovery, to focus on your rehab, to do the things that allow for you to move forward into the next phase of life.
And I will say this, I know I go on for a very long time, but I get very excited about this because, at the end of the day, I realize how heavy politics has gotten. I realize how divisive it is. But what I have found, before becoming a justice as a litigator, was I really found that people are good. And at the end of the day, as long as you’re willing to step up and you’re willing to fight, people will do the right thing.
So you first ran for the state Supreme Court in 2014. I’m curious to know, was this an idea you personally came up with or were you recruited? And then once you did decide to run for office, was there any hesitancy among voters about electing a blind justice? How did you communicate with voters? And did you have any hesitancy yourself?
Well, I think that’s an excellent question. And it goes back to what we were talking about before, which is, you have to love people. If you want to do this, you have to love people. You have to connect with people. You have to want to be with people. It’s all, at the end of the day, it is all about people, and how you can make life better for people. And if you love people and want to make life better for them, and you find that to be a part of your purpose, and you find that to be a part of your mission, then it’s the long days and the stress, you don’t mind it because you know that you’re part of something bigger than yourself.
And I think, an answer to your question, I think that people weren’t quite sure as to how was the public going to respond to this. I mean, you have to remember, in Michigan, we have 11 million people, and we are elected statewide. So the entire state votes for the Michigan Supreme Court. So if you’re running for the Michigan Supreme Court, you are running a full, intense statewide election.
And what does that mean? It has all the trappings of your intense election, right? You’re going to have television ads. You’re going to have radio, you’re going have robocalls. You’re going to have mailers. I mean, this is a very intense campaign. I mean, literally it’s almost analogous in many ways, it’s running for like Senate, because it’s statewide. The entire state is going to be voting for you. And ultimately, these races get really intense. These are not easy races. I mean, they get really brutal in many situations because the court has such a profound impact on, not just the state, but the nation. So the stakes could not be higher.
And I think that is why I’m so excited that we’re doing this interview because I don’t think people realize the significance—whether you live in Michigan, or whatever state you live in—I don’t think people realize the absolute intense significance of state Supreme Courts as it pertains to the decisions that they make, that affect people in the most profoundly personal, intimate aspects of their life. And when the Supreme Court speaks, it’s the final word as it pertains to the interpretation of the state constitution. So there’s no recourse. Once the state Supreme Court makes a decision, it speaks, that’s it.
This was a really interesting situation because you have to remember that as a blind person, what was people’s reaction going to be to this? It’s one thing when you have people with severe disabilities that are working in your workplace or at your school, but it’s a whole different thing when you are asking for able-bodied people to give someone like me a chance, where I’m going to be making decisions that affect their life. So it’s one thing where you’re going to school where you’re basically doing things kind of in the community, or this or that, but it’s a whole different thing when you ultimately are asking for the voters to basically allow for you to serve in a capacity where, as a disabled person, the decisions you make are going to affect able-bodied folks, not just the disabled.
So this was something that was seen as kind of a high risk, because it was highly unusual, and something that, I would imagine, people were like, wow, what’s the reaction going to be to this? How is the state going to take to this? Are people going to accept him? Are people going to be okay with this?
And this is why I love my state. This is why I love the state of Michigan. It is a phenomenal state. It’s just a wonderful state. And it has the greatest people that you’re ever going to find, because what we found was—and this is also kind of important to kind of point out too—is when I ran, I didn’t have the resources that my opponents did. I didn’t have anything close to that. So it was interesting is that once I got the Democratic nomination, what ultimately you come to realize is I said to myself, oh my God, what did I just do? Because you’re on the ballot. Once you submit your affidavit of identity, you’re on the ballot. Once you’re nominated by the party, you are on the ballot. And then all of a sudden I realize, oh my God, they’re going to have … In terms of what they were going to spend in comparison to what I was going to be able to spend, it was a dramatic difference, dramatic. Because ultimately, when I was doing this in 2014, they had the support of the State Chamber of Commerce. And I can assure you that the State Chamber of Commerce was not thrilled about having me be on the Supreme Court. And the state Chamber of Commerce basically had, I would just say, remarkable resources to make the state aware of their displeasure with having me on the court.
And that’s where this gets rough, because ultimately when you have a situation like this is that when I ran in 2014, I just didn’t have the kind of resources that the other side had. And when I say this, just because the other side’s resources were just dramatically—not just a little bit, dramatically above mine. But what I did was I said, okay, you know what? If that’s the case, I need to just really hit the ground. And as you can tell, you’re talking to a guy who’s got a lot of energy. After doing 25 marathons and Ironman and all that kind of stuff. I got a lot of energy.
So the way I approached it was, all right, I’m going to have to cover every county in this state. So we just got in the car and drove from county to county to county. Didn’t matter if it was rural or urban, didn’t matter if it was a farm or a factory. And I loved it. We were just driving and driving and driving, just going all across the state of Michigan. In every single town, in every county, you would meet with the newspaper or you would meet with their local radio station or you’d spend time on their local television or you’d go to the school or you just live everywhere. And if you like, people will have that connection with you.
What was remarkable what happened in 2014 was even though I just got dramatically outspent, my attitude was, all right, I’m going to get outspent, but you know what I’m going to do? I’m going to outwork. I’m just going to outwork. I got a lot of energy, I got a lot of passion. I believe in what I’m doing. I got a sense of mission and focus. And so as far as I was concerned, fine, you want to outspend me? That’s fine. What I’m going to do is I am going to go and I am going to totally outwork you. I’m going to outwork you in ways that you cannot imagine. I am just going to go everywhere. I am going to meet with everybody. I’m going to go to every festival and every fair and every event you can possibly think of. I loved it and I loved doing it. When you love people, that usually gets shown. And if you really love people and you’re doing this for the right reasons, people will see that.
What was remarkable at the last election was what they actually found, which was really interesting was … of course my campaign slogan was, in fact, blind justice. Blind justice. And what was fascinating was—is that what the voters said and all the polling data and the newspapers would do stories about this because people were captivated by this because they didn’t quite understand how is this blind guy who doesn’t have nearly the money and the resources that his opponents do on the Republican side, how is he doing so well on the polling data? What is going on that he is doing so great in this election?
What people responded by saying was, they would say, the fact that he’s blind, they would say, I think that’s great because he understands my challenges. He understands my hardships. My parents are living in assisted living. My kid gets bullied every day at school. I’m having a hard time at work. I can’t sell my house. Everything is hard. Everything is challenging. I would much rather have this person in this position than anybody else because you know what? This blind gentleman, he understands the difficulties and the hardships and the challenges that I am going through or that my family is going through or my parents are going through. That my kids are going through. And I want him to be my justice because I think he can appreciate and understand.
So, an answer to your question, what ultimately happened was we won by a substantial margin, even though we got dramatically outspent. Because at the end of the day, what this all comes down to, doesn’t matter if you’re running for Supreme Court justice or Congress, it all comes down to one thing if you’re able to connect with people and if they’re able to connect with you. But most importantly, if people realize and see that you are doing this for the right reasons, and they see that you are doing this because you really care and that you have passion and that you have purpose for it, even if they disagree with your positions or even if they disagree with your politics, if they connect with you personally, there is a stable percentage of people that will give you an opportunity and give you a chance like they did with me.
So obviously we’ve had some real challenges to the rule of law in the past few years, and the courts have often been a last line of defense in protecting that rule of law and protecting democracy writ large. How have you found the role of the court and the Michigan Supreme Court in particular evolving during this time? And how is it salient for voters who maybe didn’t think as much about the Supreme Court really risen now in 2022 as we’re facing these challenges?
So let me just answer the question by saying this: Many have argued, and many have said, that the road to the White House will go directly through the Michigan Supreme Court. So, you’re probably asking why is the road to the White House, which many have said, going directly through the Michigan Supreme Court. Now again, I’m not taking any position on any of this. I’m just simply talking to you about procedure, and I’m simply just talking to you about the cases that the court will or could be dealing with as it pertains to election issues. So again, I’m not taking any position whatsoever. We’re just talking procedurally. So let’s go through and kind of discuss this overall issue.
I think you’re not going to have any argument over the notion that Michigan is probably without question the most critical state in the 2024 election. I don’t think anyone’s going to argue with that. In fact, I think many have said that Michigan, for all intents and purposes, will decide who the next president of the United States is going to be. I think I’ve also heard it said and heard it argued that ultimately, and I think both sides would probably agree on this, that there’s no way that the Democrats can maintain the White House if they don’t keep Michigan. And I mean, I just think that it’s one of those states that is absolutely critical in the presidential election.
The reason that the court is so fundamental in this conversation, again without taking any position whatsoever, is because it is the Michigan Supreme Court that will ultimately decide how the election is going to be run. So what is, for all intents and purpose, a presidential election? A presidential election is 50 state elections. Who is it that decides how an election’s going to be run? Well, the last word on how an election is going to be run is decided by the state Supreme Court.
So let’s just take some examples of why the state Supreme Court is the last word on how an election is going to be run in the state. The reason is because the state Supreme Court will decide what is and what is not constitutional as it pertains to election protocols, policies, and procedures. So let’s just take one example of where this would come to fruition: I’m going to refer you to Wisconsin. So this is a case that I’m not commenting on it, I’m not taking any position on the case. I’m just simply referring you to that case as a matter of historical significance and as a matter of procedure. But I’m not taking a position on what happened in Wisconsin, I’m just explaining to you what occurred without any position being taken by me.
So, what occurred in Wisconsin was that the Wisconsin Supreme Court ultimately determined that the use of drop boxes are deemed to be unconstitutional. So what does that mean? Once the Wisconsin Supreme Court spoke and indicated that drop boxes are deemed to be unconstitutional, I believe the Wisconsin Supreme Court allowed for drop boxes to be used in incredibly limited fashions. So I imagine the way you would look at it is, it’s somewhat analogous to me what they did in Texas. But they basically said that the ultimate kind of use of drop boxes overall in terms of having drop boxes placed kind of inconvenient locations that the Wisconsin Supreme Court indicated was in fact unconstitutional. That’s the end of that discussion. The fact that Wisconsin Supreme Court said that the use of drop boxes in this fashion is deemed to be unconstitutional, means that they’re unconstitutional in the state of Wisconsin. That’s it. You’re not going to have drop boxes in the state of Wisconsin.
So, what is important to understand is those types of issues and those types of cases are going to be coming to the Michigan Supreme Court as well. All the issues that go into literally every aspect of an election just in this concept: who votes, where they vote, how they vote, when they vote. Every aspect of how an election is ultimately going to be run is going to be decided by the Michigan Supreme Court for the state of Michigan. And that’s it. Whatever the court decides as it pertains to election policy or what is constitutional or what is not constitutional—again about who can vote, where they can vote, how they can vote, the manner in which they vote—all of it is going to be decided by the Michigan Supreme Court. Period. End of story.
One other question I just want to jump into is that—and I can speak for Michigan but I think this is applicable for, I would imagine, every other state. The Michigan Supreme Court will be the absolute last word on reproductive rights for the state of Michigan, period. End of story. And that’s why state Supreme Courts are so critical, because whether you’re talking about Michigan, Maine, California, whatever it is, it is the Supreme Court of that state that is going to make the absolute final, final decision as it pertains to the most personal, intimate issues that are facing people here in the state of Michigan. State Supreme Courts are everything.
Your Honor, I really want to ask you about a recent ruling by your court just last week. Election officials, Republican officials in the State of Michigan had blocked two different ballot measures from appearing on the November ballot. One that would enshrine the right to an abortion into the state constitution and another that would protect and expand voting rights. And this decision was appealed to the courts and ultimately came before your court. In a concurring opinion that you wrote—I have to say, Justice Bernstein, you wrote the equivalent of a sick burn in a judicial opinion. It was really amazing to read. So, I would love it if you could just explain to our listeners the background, particularly on the abortion rights ballot measure, why it was in dispute, why Republicans were saying it shouldn’t be allowed to appear on the ballot, and how the court ultimately ruled, and exactly what your concurring opinion mentioned in this amazing footnote.
Thank you. Well, so here’s the thing: This really goes to why state Supreme Courts are so critical and a lot of times state Supreme Courts get overlooked. But in the end, all of the most intensive personal issues in every state come before that state’s Supreme Court. And just to kind of give a quick example of how this works, I think last week is a perfect example, which is you had over 700,000 signatures that were gathered so that you could have basically a ballot initiative on abortion here in the state of Michigan. And what occurred was, and then also there was another ballot initiative that was also put forth, which was called Promote the Vote, which was the idea of basically protecting voting rights and helping to enshrine voting rights. These are two critical issues.
I think that this highlights, I think, the role of Supreme Courts in these cases, but I’m hoping that people will come to realize the significance of state Supreme Courts because it’s going to occur in all of the most intensive cases that are going to be kind of moving forward in the next couple of years. So the issue here was that ultimately what happened was that even though in the abortion case, the people had gathered 700,000 signatures, what occurs is before something goes on the ballot, what ultimately happens is there’s a number of steps. So even if you want something to go on the ballot and you get the signatures, it doesn’t just go on the ballot. There’s a series of steps that it has to go through before it can go on the ballot. And every one of those steps is subject to litigation.
So, the first step that it has to go through is it has to be certified by the Board of Canvassers. Now, what happens with the Board of Canvassers, is that on the Board of Canvassers, you have two Democrats and two Republicans on the Board of Canvassers. But in order for something to go onto the ballot, you have to have a majority of the Board of Canvassers. So what seems to be happening now more than ever is that the Board of Canvassers is deadlocking. So basically in this situation, you had, for all intents and purposes, you’ve had the two Democrats who were on the Board of Canvassers voting that something should be certified to go on the ballot. You had two Republicans saying it should not go on the ballot. Because you didn’t have a majority it doesn’t go on the ballot. That then triggers litigation, and then through the litigation, it ultimately comes to the Michigan Supreme Court.
Again, and I say it over and over, but this is why state Supreme Courts are going to be critical, because ultimately, I think as we go forward in the ‘22 election, and probably in the ‘24 election, what’s going to happen is, it never used to be the case that Board of Canvassers weren’t willing to certify elections. I think what we’ve just seen here is that here you’ve had the Board of Canvassers basically failing to certify a ballot initiative. And two ballot initiatives, they failed to certify.
So ultimately, if you’re going to have deadlocks at the Board of Canvassers, it is going to require litigation and it’s going to require involvement from the state Supreme Court. So now, the state Supreme Court is going to have to be involved in these decisions that the Board of Canvassers make. And if Board of Canvassers fail to certify these issues, you could anticipate—and again, I’m not taking any position—but you could anticipate that perhaps as we go forward into the future, you could have an issue with certification of election results because it’s got to be certified by the Board of Canvassers.
And then ultimately, the question then becomes, who will then ultimately make that final decision? And guess who it is? It’s going to be state Supreme Courts. So in this situation, the first issue basically was that they refused to certify. And I want to indicate is that that was just phase one, because the Supreme Court had to get involved and basically had to overturn the Board of Canvassers. And what’s funny is that you’re asking about the opinion that I ultimately wrote. And again, that’s the beauty of being the blind justice, because basically, the argument that was used for the failure to certify was that there was a question about the word spacing on the ballot as it pertained to abortion rights.
And so the question was, since the ballot proposal when it went to the signatures and when people signed it, that it didn’t have the appropriate spacing. And because the argument went that because it didn’t have the appropriate spacing, the two Republicans basically took the position that it shouldn’t be certified and shouldn’t be able to go on the ballot because the wording on the petition wasn’t spaced properly. And so that’s the beauty of diversity, because ultimately, we could get it … And if you look at the opinions that were written, when you have people that went on for pages, you have my colleagues went on for pages about spacing and the importance of spacing and how spacing makes a huge difference for linguistics and all this kind of stuff.
And I finally just said, “You know what? I read all this and I …” And then I just said, “You know what? Enough’s enough.” And I basically said, “You know what? Listen.” And the funny thing is, well, actually another colleague basically attacked me and said that I was a populist and that ultimately I wasn’t following election law, and that he’s wordsmith, and because he’s a wordsmith, that ultimately he can understand and appreciate spacing. And my response was, “I’m also a wordsmith, but I happen to be blind.” And I went on to say that, for a blind person, I really don’t care about spacing because blind people don’t really care about spacing. What blind person’s going to care about spacing?
I said, “I’m blind.” Ultimately, I said, “How you space words really doesn’t make a difference for me.” But the key issue here is that, now I think what is going to happen is people have to remember or focus on the fact is, is that even though it’s been deemed, even though the Board of Canvassers is overruled, the legislature still plays a role in this too. And so the question’s going to be, as we move forward with both of these initiatives, the question’s going to be, what role, if any, is the legislature going to play? And there is a role the legislature can attempt to play if it so chooses to.
So you have a number of processes that these things go through. And if the legislature chooses to involve itself in this, that in and of itself is going to trigger litigation. And we’re going to have to take this back to the Supreme Court to make a decision. And the last thing I just want to say on this, on all these initiatives is that even if the initiatives pass, they’re still subject to judicial interpretation. We’ve still been dealing with marijuana. Marijuana basically was passed twice by state voters. And we’re still having cases as it pertains to interpretation. So when you get into these complicated issues, voting rights or abortion, whatever it is.
And just one other thing I want to say as it pertains to the significance of the abortion issue here in the state of Michigan, is that these are the kind of issues the court’s going to have to get into. It isn’t just limited to the question of abortion, it’s also the question as it pertains to what impact does this have on assisted pregnancies? What impact does this have on in vitro fertilization? What impact does this have on cerebral palsy research? What impact does this have on Parkinson’s research? And one of the things that the court’s going to have to get into—and it’s so deeply personal, but this is now going to be the purview of the Supreme Court—is what ultimately happens if you have a miscarriage? Is that going to require a police investigation?
So I mean, that’s how serious and significant this is. And you guys have been so amazing to give me so much time. But I think if there’s one thing that I say over and over and over again is, whether you’re talking about reproductive rights, whether you’re talking about voting rights, whether you’re talking about the environment, whatever you’re talking about, people have to realize that you can have so many people who take different positions, but at the end of the day, the Supreme Court is going to be the absolute last word and final decider.
I just want to say in conclusion, people tend to ask, why do we do this? I think that’s the critical question that anyone who goes into public service has to answer. Why? Why should it be you? And why is it that you’re doing this? And I answer this question all the time because it really goes to my spirit and to my soul, is that, there are certain cases that stick with you that you never forget because it really defines why we do what we do. And I was given the opportunity to write the Flint water case. And in Flint, I’m sure your listeners are capable to recall, you had 150,000 people whose water was poisoned. And you think about, why do we do this job? Why am I in this position? It’s brutal, it’s hard, it’s intense. So why is it that we do what it is that we ultimately do? Why do we make the sacrifices? Why do we put ourselves out there like this? Why do you do this?
And for that Flint water case, that Flint water decision, I was able to write an opinion that ultimately told the folks in Flint that they matter, that they have a voice, that they have a constitutional right to be heard. And when you think about, when you write a decision, when you put pen to paper and it’s able to affect 150,000 people in a city and give them a better life because you’re protecting their constitutional rights, or you think about a case like the environment where a factory was coming into a community, South Dearborn. And ultimately what happened was the question was, what role does a community get to play in terms of this process?
Can a factory—can they add a huge smokestack that’s going to send toxic waste into schools and different places? And the question was, who has standing in this? I mean, these are the kind of cases that really affect people. And I was able to write an opinion that basically said, “You know what? The community, people in the community can have standing. They can have a voice. And they have to be part of that administrative approval process.” And I’ll just tell you one last thing why this matters so much. We can focus on the big cases, we can focus on the intense cases, but like we talked about in the beginning of the interview, there’s 25 cases every single week that we’re ultimately deciding. Think about that. Twenty-five cases every single week that we’re deciding.
And they don’t make the big headlines, and they’re not the cases that people are focused on, but they are cases that really impact people and impact them dramatically. And I’ll just share with you one, because this is the case that stays with me as to why we do what we do, and why elections matter and why doing a podcast like this is important and why it’s critical for folks who have a better understanding or better appreciation or better knowledge of what Supreme Courts do and how they do it. And this is a perfect example. This is a critical case.
It was the Michigan Gun Owners versus the Ann Arbor Public Schools. And what happened in that case was, the question was, does a local school district have the power and the right to regulate what firearms are allowed to come into a school building? Right? This is an intense situation, which is like, does the Ann Arbor Public Schools or any public school district have the right to regulate firearms that are coming into a school. And the Michigan Gun Owners were arguing, no, they don’t. That there are certain rights that are within the state constitution that basically say that Ann Arbor does not have such a right, Ann Arbor does not have such a power to be able to say what weapons can or cannot come into a school.
That as long as you have an open carry permit, their position was that if you were carrying an AR-15, and as long as that’s visible, and you could have two or three AR-15s, and you want to walk into a public school, that there is nothing that the school should be able to do to prevent you from entering the school with your AR-15. They were putting forth that argument to the court, that they have a constitutional right, that there’s no limitation, and that ultimately the local district is not able to prevent a person with an AR-15 from coming into the school.
The reason I’m sharing that with you is you’re probably saying to yourself, well, I mean, wow, that’s a little intense, especially with all the school shootings and especially what happened here at Oxford and all that kind of stuff. So how would the court rule on that? Well, guess what? It was a 4-3 decision. So this is serious stuff. It was a 4-3 decision. If you had one vote that went the other way, right? 4-3. It wasn’t 7-0, it wasn’t 6-1, it wasn’t 5-2, it was 4-3. It was one vote. One vote that basically allowed for the local school districts to be able to tell their residents and citizens, hey, you know what? We’re sorry. We are going to prohibit you from being bringing an assault rifle, an AR-15 into a school building. And we are going to basically enact rules that basically say that if you’re coming into one of our schools, that you cannot bring an assault rifle or two assault rifles or three assault rifles into a school.
But the thing that I keep emphasizing here is that it was one vote. If the court had gone … If you just had one vote the other way, the consequences would’ve been quite different. The consequences would’ve been real. The consequences would’ve been … And there’s no legislation that could fix it because it’s deemed constitutional or unconstitutional. The consequence would’ve been, but yeah, you want to bring an assault rifle, an AR-15 into a public school here in the state of Michigan, and there’s nothing the school district can do to stop you if it had gone one vote the other way.
We have been talking with Justice Richard Bernstein of the Michigan Supreme Court. Michigan Democrats are defending a narrow 4-3 majority on the court this fall. Justice Bernstein is up for reelection. You can find out more about his campaign at the very memorable URL, theblindjustice.com. Justice Bernstein, thank you so much for joining us today.
That’s all from us this week. Thanks to Justice Bernstein for joining us today. If you’d like to contribute to Justice Bernstein’s campaign, please visit justicewithjulia.com, which has the slate of Supreme Court candidates endorsed by Daily Kos and actor and activist Julia Louis-Dreyfus, including Justice Bernstein. The Downballot comes out every Thursday everywhere you listen to podcasts. You can reach out to us by emailing firstname.lastname@example.org. If you haven’t already, please subscribe to The Downballot and leave us at five-star rating and review. Thanks to our producer Cara Zelaya, and editor Tim Einenkel. We’ll be back next week with a new episode.