This year, Michigan voters will elect justices to serve on the Michigan Supreme Court. Two of the seven seats will be filled. They'll go to the candidates with the two highest vote totals. Michigan Radio's Morning Edition is featuring interviews with each of the five candidates running for the court.
Kerry Lee Morgan is an attorney in southeast Michigan. He previously served as an attorney adviser with the United States Commission on Civil Rights in Washington, D.C.. He's been nominated by the Libertarian Party, although candidates appear without party affiliation on the ballot.
He spoke with Michigan Radio's Lauren Talley.
Lauren Talley: We talked to you during your 2020 run for state Supreme Court and you've run half a dozen times. Would you briefly describe your legal philosophy and anything that might have changed about your thinking since the previous campaigns?
Kerry Lee Morgan: You know, since the prior campaigns, I think I've become more committed to protecting and ensuring the freedoms of Michiganders and the security of their constitutional rights as enumerated in the Michigan Constitution.
The pandemic underscored the need for judicial review of the Legislature and the executive branches, their inability to refrain from exceeding their constitutional powers. And that's become, I think, much more solidly embedded in my judicial philosophy.
LT: Well, along that note, in June 2020, you and a colleague filed an amicus brief supporting the Michigan Legislature's lawsuit against Gov. Whitmer for her use of emergency orders during the COVID-19 pandemic. What do you see as the key concerns when looking at cases involving governmental authority?
KLM: Well, I think one of the key constitutional concepts is the separation of powers. Each branch is equal in coordinate, but they are all subject to the Constitution's limitations on their power. And they all are supposed to serve one purpose or one grand purpose of ensuring that the rights of the people are preserved and remained inviolate.
So, when looking at cases and the briefs we filed in those cases, we argued that in fact, the separation of powers was violated, which was the ultimate basis upon which the Michigan Supreme Court, in a 4-3 decision, struck down all those orders. But it has to start with the text, and it has to start with stepping back and looking at the big picture of what is the Constitution supposed to even do. It creates a government, but it also, more importantly, limits a government's power.
LT: You're the director of the LONANG Institute. It’s a Michigan-based nonprofit that applies the “laws of nature and nature’s God” to contemporary legal disputes. As part of that group, you filed an amicus brief in the U.S. Supreme Court decision that overturned Roe v Wade. Would you explain the legal thinking behind that brief?
KLM: That brief articulated the actual text of the 14th Amendment of the U.S. Constitution, the equal protection of the due process clause. And in reading that, you find that there's no right to privacy embedded in the due process clause, and there's certainly no right to abortion.
"[T]oday's conservatives and liberals, they tend to want to be faithful to [the Constitution] when it suits the ends they wish to achieve, and create legal justifications that would excuse the fidelity to the Constitution when it serves the ends they wish to achieve."Kerry Lee Morgan
Our brief tried to focus on honesty and judicial analysis. And the courts, both conservatives and liberal justices, have essentially declared that they reserved to themselves the right to insert new rights or unenumerated rights into the Constitution, claiming that they're embedded in the substantive due process clause of the federal Constitution. And our brief said, "No. What are the rationales for this?"
Well, conservatives like to say that if the right is deeply rooted in our nation's traditions, that it's okay for the court to find it inserted in the Constitution. And the liberal branch of the court, they like to say that if the right is associated with intimate personal relationships, then they they reserve the right to insert those rights into the Constitution.
Our brief came along and said, the jig is up, so to speak. The judges aren't supposed to be inserting rights into the Constitution and the nature of the Constitution. The due process clause is procedural, not substantive. So we kind of called them out on that and asked the court to return its approach to the Constitution by actually refusing to award itself the liberty of rewriting it based on rationales that it created that have no constitutional basis.
LT: Michiganders will be voting on Proposal 3, which would enshrine abortion rights in the Michigan Constitution. If that passes, and even if it doesn't, the state Supreme Court is likely to hear abortion-related cases in the coming years. How would you pull back to make a neutral assessment in those types of cases after taking an active role by filing an amicus brief in the federal case?
KLM: I don't think it's a matter of pulling back. It's a matter of saying, "What is the law? What is the state constitution say?"
The state constitution has a due process clause as well. And if you read the case law here in Michigan, you'll find that the due process clause of the state constitution has generally followed the due process clause of the federal constitution. And that was the case until it became inconvenient here in the last eight months to to do that. And the governor and the various organizations have tried to write into the [state] constitution the whole notion of notion of a right to privacy and right to abortion in our state constitution, which, of course, was never there, is not there, and was never even realized by anyone to be there until the [U.S.] Supreme Court struck down the Roe decision.
But, in terms of me applying the law, that's what you do. The fact that we filed briefs isn't a decision in the case before the Michigan Supreme Court. But the judge's job, or justice's job, is to look at the text of the Michigan due process clause and refrain from exercising power not granted by writing new rights into it.
LT: Who is a current or former state or U.S. Supreme Court justice you admire and what about their work inspires you?
KLM: I was asked that question by the League of Women Voters in their debate, and I indicated I wasn't really too impressed with any of the justices. Obviously, you have historical justices like John Marshall, the chief justice of the [U.S.] Supreme Court, that really fundamentally stayed in touch with the written Constitution.
But today's conservatives and liberals, they tend to want to be faithful to it when it suits the ends they wish to achieve and create legal justifications that would excuse the fidelity to the Constitution when it serves the ends they wish to achieve, or their claims that they're doing justice or other things, rather than [the idea that] their only master is the Constitution, and it is the Constitution they must serve.
Editor's note: Quotes in this article have been edited for length and clarity. You can listen to the full interview near the top of this page.
