Sam Bagenstos has the kind of credentials that could have made him a very rich man. Harvard Law School. A high-level appointment in the Obama Justice Department. A clerkship for Justice Ruth Bader Ginsburg. An endowed chair at one of America’s elite law schools.
Instead, he’s spent the bulk of his career litigating civil rights cases.
Bagenstos tells me he was “inspired to become a lawyer by the civil rights movement of the 1960s.” He cut his teeth as a lawyer with the U.S. Justice Department’s Civil Rights Division shortly after the Americans with Disabilities Act became law, and has spent the last several decades becoming one of America’s leading experts on the rights of the disabled. He returned to the Civil Rights Division as its #2 official during the early years of the Obama administration. And he’s now fighting on behalf of the many residents of Flint, Michigan poisoned by inept leaders and lead-laden water.
And, if all goes well for Bagenstos this November, he will add another credential to his list of accomplishments — justice of the Michigan Supreme Court.
“In the last year and before that we’ve seen how important courts are,” Bagenstos reminded me when we spoke last week — among other things, the last year has seen lower court judges pushing back hard against Donald Trump’s incursions on constitutional government, but its also seen aggressive attacks on civil rights by U.S. Supreme Court justices.
Bagenstos added that “the progressive community in particular has failed to pay attention to how important courts are in general and how important state courts are in particular.”
The GOP’s emphasis on the judiciary is especially pronounced in Michigan. Currently, the Michigan Supreme Court has a 5-2 Republican majority — although two seats are up this November so Democrats have a shot at a majority if they win both elections. If elected, Bagenstos could easily spend his first several years as a justice writing dissenting opinions.
Swimming against the tide
But Bagenstos is also a longtime civil rights lawyer who spent his career watching the judiciary drift further and further to the right. He’s used to trying to win over conservative judges, and he’s scored some surprising victories along the way.
Consider Young v. UPS, a case Bagenstos argued and won in the Supreme Court of the United States.
Peggy Young was a UPS employee whose doctor told her she should not lift more than 20 pounds during her pregnancy (or more than 10 pounds in the later stages of that pregnancy). At the time, UPS required its drivers to be able to lift up to 70 pounds, so it would not allow Young to work while she was pregnant. This was despite the fact that UPS allegedly provided accommodations, which could have been offered to Young, to disabled employees who were similarly unable to lift heavy objects.
It was also despite the fact that the Pregnancy Discrimination Act provided that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability.”
The Supreme Court reinstated Young’s lawsuit after a lower court backed UPS. At the very least, the Court explained, Young must have the opportunity to prove that she was treated differently than similarly disabled employees — and, if she was, the Pregnancy Discrimination Act was violated. Most surprising of all, Bagenstos convinced archconservative Justice Samuel Alito to side with his client, though Alito did so an a separate opinion.
Bagenstos attributes his success in the Young case to the fact that that he was able to make a strong textualist argument of the kind that conservatives often favor. He also attributes it to the fact that he attracted unlikely allies to Young’s cause. Groups on both sides of the abortion debate, including 23 groups that identify as “pro-life” filed briefs in the Supreme Court supporting Young. As Bagenstos told me, they all thought a woman shouldn’t have to choose between a job and a pregnancy.
Bagenstos is now hoping that he will prove similarly persuasive in a case that deeply concerns many Michigan voters. In Boler v. Earley, Bagenstos convinced a left-leaning panel of federal appellate judges to reinstate civil rights claims brought by residents of Flint, Michigan who were poisoned by the state’s decision to switch the city’s water supply to the corrosive Flint River. Earlier this year, Bagenstos filed a brief advising the Supreme Court not to review this decision.
Should he join the state supreme court, Bagenstos would be a sharp break from the conservatives who’ve dominated it for the better part of the last several decades. Indeed, the Michigan Supreme Court is a poster child for what can go wrong for progressives when their political adversaries gain control of a state’s judiciary.
Although Michigan elects its Supreme Court justices, governors may appoint new justices to fill vacancies until the next general election. Using this power, Republican John Engler, who served as governor of Michigan from 1991 through 2003, filled three of the court’s seven seats. A fourth seat was filled by Justice Maura Corrigan, who won an election to join the state’s highest court after being appointed to the Michigan Court of Appeals by Engler.
These four formed a bloc that transformed the state supreme court into a laboratory for conservative legal experiments. In one case, for example, Engler’s justices effectively deactivated a state environmental law, unless individuals challenging certain mining activity complied with a cripplingly short statute of limitations. In another, the court held that a woman who allegedly experienced pervasive gender-based harassment was not protected by a state civil rights law because the harassment was not sexual in nature.
Indeed, as a 2009 scholarly study of the Michigan Supreme Court determined, the court overruled over four times as many cases in the nine-year period when Engler’s justices held the majority as it did turning the previous nine-year period — adding up to a total of 38 overruled decisions. Moreover, “in every civil case, the result of the overruling of the prior decision was to favor defendants over plaintiffs by limiting liability or by making it more difficult for the plaintiffs to assert a claim,” and, “in every criminal case, the result of the overruling of the prior decision was to favor the prosecution over the defendant and to uphold a conviction against the defendant’s constitutional or statutory claim.”
According to the author of the study, Wayne State law professor Robert Sedler, this propensity to overrule past decisions — disregarding a practice known as “stare decisis,” which calls upon courts to defer to prior precedents — is “to the best of my knowledge, completely inconsistent with the meaning of stare decisis as applied by all of the other American state courts.”
Yet, while this lack of respect for prior decisions remains unusual, it is very much ascendant in conservative circles. In a 2008 article published by a journal affiliated with the conservative Federalist Society, Stephen Markman, an Engler appointee and Michigan’s current chief justice, celebrated his court’s disregard for prior precedents. “The court’s dominant premise has been on ‘getting the law right,'” then-Justice Markman wrote, rather than on “reflexively acquiescing in prior case law.” Yet Markman also had a very particular definition of what constitutes “getting the law right” — “a majority of this court, four of its seven justices, are self-described ‘Federalists’ and are committed to the judicial values that are often identified with the Federalist Society”
Markman’s view is very much on the rise within the powerful Federalist Society. Justice Clarence Thomas, in the words of his late colleague Justice Antonin Scalia, “does not believe in stare decisis, period.” Neil Gorsuch, who occupies the seat Senate Republicans held open for a year until Donald Trump could fill it, appears eager to follow in Thomas’ footsteps. Originalism, the dominant method of constitutional interpretation among conservatives, largely functions as an excuse to toss out old precedents that sitting judges find disagreeable.
By capturing the Michigan Supreme Court, conservatives built a testing ground for many of their most radical ideas. And then they spread those ideas through much of the judiciary at large.
A Democratic awakening?
In fairness, there are early signs that Democrats are awakening to the need to take state courts as seriously as Republicans do — and that Bagenstos’ run could be part of a larger trend. Each of California Gov. Jerry Brown’s (D) three appointments to his state’s supreme court, Justices Goodwin Liu, Tino Cuéllar, and Leondra Kruger, are major legal talents who would be well-suited for the Supreme Court of the United States. Justice Melissa Hart, who Colorado Gov. John Hickenlooper (D) recently appointed to his state’s supreme court, is similarly adroit.
In 2015, Democrats gained a 5-2 majority on the Pennsylvania Supreme Court. That gave the state’s highest court a majority to strike down one of the most aggressive partisan gerrymanders in the country (though it is worth noting that the new, court-imposed maps, still give a slight advantage to the GOP). In North Carolina, the Democratically controlled Supreme Court halted a Republican effort to entrench voter suppression measures.
But Republicans still have a head start in the fight for state judiciaries, and it shows. Among other things, Republicans used state supreme courts as a breeding ground for many of their most promising legal talents. Many of Trump’s most intellectually gifted judicial appointments — including federal appeals court judges Joan Larsen, Allison Eid, Don Willett, and David Stras, were previously state supreme court justices. Any one of these individuals could potentially be a U.S. Supreme Court nominee in a Republican administration.
Sam Bagenstos is also a U.S. Supreme Court-level talent. And, if he is elected, he will be one of a select group of judges at any level of the judiciary who devoted their careers to civil rights work. But he is also only one man, and if he does win his election, he will only have one vote on a seven member court.
Undoing the work of men like John Engler will require many more Sam Bagenstoses.