Meet the MI Supreme Court Candidates: Richard Bernstein

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.

Justice Richard Bernstein was elected to the Michigan Supreme Court in 2014. He's running for a second eight-year term on the bench and was nominated by the Democratic Party, although candidates appear without any party affiliation on the ballot.

He spoke with Michigan Radio's Doug Tribou.

Doug Tribou: Justice Bernstein, good morning.

Richard Bernstein: Well, good morning. I gotta tell ya, I am very excited to be joining you in person here in your studios in Ann Arbor, because I think everything should be in person.

DT: [Laughs] Well, we're certainly going to touch on that as it relates to the court. Let's start with something else, though. You've been a justice for nearly eight years now. Could you share an example or two of a ruling or a dissenting opinion that stands out to you as a good reflection of the philosophy you bring to the court?

RB: When you do a job like this, you do it because you want to make life better for people. And I was given the opportunity to write the decision for Mays v. Snyder. And there's 150,000 people in Flint who were affected by this decision, ultimately, under the GTLA, which is the Governmental Tort Liability Act. GTLA basically shields the government from liability.

And the question here was: Did the residents of the city of Flint have the ability to basically contest, or have the opportunity to have their grievances heard, in a court of law, or was the GTLA going to supersede and allow for them to not be heard in a court of law?

My decision ultimately allowed for the people of Flint to have a voice and have a constitutional right to be heard by their government.

DT: You've been blind since birth. You refer to yourself as "The Blind Justice." Before joining the court, you led the public service division for your family's firm, Sam Bernstein Law. And your career as an attorney included cases about accessibility and rights for people with disabilities. COVID-19 forced the Michigan court system to make adjustments to allow a different kind of accessibility. When in-person hearings were a greater risk, the courts turned to virtual video hearings. What are your thoughts on how technology can, or should, be used in Michigan courts moving forward?

RB: The default position that we have to have is that everyone has to be in person. Now, if you require an accommodation, then the accommodation would be that we would do that virtual. So you create a virtual accommodation for someone who is concerned about being in person. That's the accommodation, but not the default.

Because if you're not in person, those relationships, those conversations that are essential for human connection are absolutely imperative in the judicial context. And we've got to make sure that that is our absolute focus.

DT: I do think that there's a counterpoint. In some cases, either some people may be more comfortable in that remote setting. Or if you were in a room with your attorney on the other end of that Zoom call, that maybe that's the most important person to be in the room with. [Using Zoom] also might allow for more access and reduce some costs and sort of clutter in the day. You might be able to get through more cases if there was less turnover in the courtroom. How would you respond to some of those points?

RB: Absolutely not. And the reason why is because, think about it, blind people can't use Zoom. It's incredibly challenging, incredibly difficult. If a person with disability can't use Zoom, how do you expect a senior to do it? How do you expect people who live in remote areas to do it? Ultimately it's an extra stress. You know, you can't hear the judge. The judge can't hear you. There's a problem and there's always a problem [with Zoom]. Always a problem. And if you put that into the mix with court, it just makes it even worse.

DT: In 2021 you spent months overseas during a diplomatic trip about accessibility matters in the United Arab Emirates. And while you were staying in Dubai, you continued to do your work for the Michigan Supreme Court. You received criticism mainly from state Republicans who said that by being abroad, you couldn't fully understand what it was like for Michiganders here in the state during the start of the COVID pandemic. If you're reelected, would you make that same kind of diplomatic trip again and use technology to make it work during your next term?

RB: This has been work that I've been doing for over 15 years. What you have to realize is, is that when you look at the Supreme Court, we ultimately get February off every year and we get August off. So the question is, how do you use that time? Right now, people can use it however they want because the court is adjourned for February and for August.

This is work that I've always done. Let me just give you some examples. So in Austria, it was illegal for blind people to become judges. I am proud to say that through the work that I did, that has now been changed. This is work that I am asked to do, and I think that's just an important, critical thing for folks to understand as to kind of why I do what I do and who it serves.

DT: But Justice, I don't think that the issue is your work on behalf of accessibility issues in other countries. I think the question here is: Is it appropriate for someone to be doing the work of the court outside of the state of Michigan while on another mission?

RB: Sure. Well, at that point, the court was closed, so there was no one in the court. And just like why I'm here in person, the fact that the building was closed made it very difficult for me to do my work. Before I went, I was basically working exclusively by phone while everybody else was on Zoom. Once I was able to go over to the Middle East, because I had a team that I was working with in the Middle East, I was able to use Zoom on an equal basis. So ultimately that allowed for me to do my work better. And also everybody understood that the minute that the [Supreme Court] building opened, I was back.

DT: As a candidate, I know you can't comment on issues that might come before the court, but I would like to ask you about the complexities of dealing with the legal fallout from Roe v. Wade around the country. The overturning of the Roe decision is reactivating state abortion laws that had been dormant. It's also sparking new abortion legislation and ballot initiatives, something that we're seeing here in Michigan with Proposal 3. What are the unique challenges about tracking and preparing for the related, but wide-ranging cases that could come before the court on that topic?

RB: It's a great question. I'm just going to do this because all good judges are going to say this, and it's very important to always follow the canons. So at no time am I taking any position whatsoever. But we can discuss the procedure.

The Michigan Supreme Court will be the absolute last word when it comes to reproductive rights, even if, let's just say hypothetically, [Proposal 3] passes, it's still coming to the Michigan Supreme Court because it has to be interpreted. I always like to use the example of marijuana, right? We are still dealing with marijuana. And how many initiatives have we had on that, referendums have we had on that?

I want to also emphasize the electoral process because the Michigan Supreme Court is going to have to decide every constitutional question that arises in an election. So, who can vote? Where they can vote? How they can vote? These questions are all coming to Michigan, and the Michigan Supreme Court will be the absolute last word.

DT: Justice Richard Bernstein, although we are in separate rooms here at the Michigan Radio studios. I want to thank you...

RB: We're still in person! We're in person. We've come back. I can't wait to come back. But when we come back, I want you make me a promise that we will be in person. And I want to see the newsroom flushed with energy, people and excitement.

DT: [laughs] I think we'll have to defer to COVID on that, but I do thank you for coming to the studios today.

RB: Thanks. Take care.

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.