Michigan Supreme Court Justice Richard Bernstein should resign

His attack on a fellow justice wasn't just ugly and unprofessional, it calls into question his impartiality and fitness to serve on the court

(Michigan Supreme Court Justice Richard Bernstein. Photo by Dominick Sokotoff/SOPA Images/LightRocket via Getty Images)

That didn’t take long. Shortly after Kyra Harris Bolden was sworn in as the newest justice — and the first-ever black woman — on the Michigan Supreme Court, one of her fellow justices has publicly ridiculed her.

Justice Richard Bernstein’s criticism of Bolden isn’t just meritless and unfounded, Bernstein’s criticism is proof that he himself is unfit to serve on the court.

So what did Bolden do that was so offensive to Bernstein? She hired a man named Pete Martel to be one of her clerks. Martel is plenty qualified for the position. He has a law degree from Wayne State University, has been admitted to the Michigan Bar, and from what I can tell, is earning a Ph.D. in sociology from the University of Michigan. He has worked as a prisoner advocate, a mitigation specialist, and at the State Appellate Defender Office. It’s also not much of a surprise that Bolden would hire Martel. She campaigned with him when she ran for the state supreme court in 2022.

For most people, Martel’s life is also a remarkable and inspiring success story. In 1994, he was convicted of charges related to an armed robbery and attempted escape. He served 14 years in prison, was released in 2008, and then went about turning his life around. What irks Bernstein is that in the course of committing his robbery, Martel fired his gun at a police officer. Again, all of this is all well known, and was part of the series of crimes for which Martel was convicted and has served his time.

But Bernstein said Bolden’s hiring of Martel “disgusted” him. His criticism was effective enough to persuade Martel to resign from his new position. He said he didn’t want to be a distraction.

It is Bernstein — not Bolden or Martel — who ought to be embarrassed. There’s no reason why someone who has paid their debt to society shouldn’t serve as a clerk to a state supreme court justice. There’s no law against it. There’s no rule against it. And presumably, Martel would have had to show he was rehabilitated and of sound moral character to be admitted to the state bar.

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If anything, state supreme courts would benefit from the experience of someone who has seen the criminal justice system from the inside. Martel’s real-world perspective and real-life experience would presumably be orders of magnitude more informative to the court than that of your typical 20-something clerkship applicant.

But while Bernstein should be embarrassed for thinking Martel isn’t worthy of a clerkship, it’s what he specifically said in his criticism that makes him unfit to continue on the court.

“I’m a Democrat, but I’m also intensely pro-law enforcement,” Bernstein reportedly declared, “and this is a slap in the face to every police officer in the state of Michigan.” He then called Bolden’s hiring of Martel a “political statement.” (The fact that Bernstein apparently thinks merely hiring someone with a criminal record is a “political statement,” while publicly declaring “I’m intensely pro-law enforcement” is a benign statement devoid of politics speaks volumes in and of itself.)

The justices who serve on state supreme courts regularly hear cases for which law enforcement officers — both individually and collectively — are either parties or have a direct interest in the outcome. State appeals courts issue decisions on some of the most profound controversies we face in a free society — like the circumstances under which armed government employees can legally kill, beat, or detain people, and how and if they should be held accountable when they violate the constitution. These courts are tasked with striking the right balance between public safety and individual rights.

For a sitting justice to say he is “intensely pro-law enforcement,” then, ought to be every bit as outrageous as if he had said he is “intensely anti-law enforcement.” He has made it about as clear as someone can that when he hears these cases, he’ll have a thumb on the scale.

And let’s be clear, here. Bernstein did not say he is “pro-rule of law,” or “pro-enforcement of the law.” The context and his subsequent words makes him meaning and intent unambiguous. He was saying he is intensely pro police-officer. And he said so in order to contrast himself to one of his fellow justices, whose actions he clearly thinks are not only insufficiently deferential to police officers, but were a deliberate effort to signal her hostility to them.

There’s zero evidence that Bolden hired Martel for any of those reasons, of course. It seems clear she hired him because he’s a trusted advisor. But that Bernstein would immediately conclude as much is a huge problem . . . for Bernstein.

I realize some will think I’m being hyperbolic here. But I’m dead serious.

To understand why Bernstein is no longer fit for the court, imagine you’re a party in any case before the Michigan Supreme Court that doesn’t involve the police. Say you’re a business suing over a new environmental regulation. Would you think you’d get a fair shake if one of the justices about to hear your case had publicly declared himself “intensely pro-environmental regulation?” Say you’re suing your insurance company for denying coverage after a natural disaster. Would you be comfortable going before a justice who had said he was “intensely pro-insurance industry,” called out another justice for being insufficiently deferential to insurers?

But it’s worse than all of that when it comes to police officers, and not just because can can do things to you that are much worse than denying an insurance claim. Fourth Amendment cases (or cases pertaining to a state constitution’s equivalent of the Fourth Amendment) often require an appellate court to ascertain whether the officers in a particular case were acting in “good faith.” If you were going up against law enforcement officers in one of those cases — and the well-funded state apparatus that defends them — would you think you were going to get a fair shake from a justice who voluntarily described himself as “intensely pro-law enforcement?” Would you trust that he’d be fair in assessing if the cops in your case acted in good faith?

What if you were suing the police for illegally arresting you because you made fun of them on Facebook? Do you think a judge who apparently sees at his duty to publicly defend police officers from a rhetorical “slap in the face” could hear your case impartially? Do you think you’d get a fair hearing from a justice who did that in the course of publicly criticizing another justice — who also happens to be the state’s first black woman on the court — for being insufficiently deferential to cops?

Michigan appeals courts have heard some critically important law enforcement-related cases over the last half century or so, including Hudson v. Michigan, the case in which the Supreme Court eventually decided not to apply the Exclusionary Rule when police engage in illegal no-knock raids and Michigan State Police v. Sitz, in which the Supreme Court created a loophole to the Fourth Amendment so police could set up roadblocks to search motorists without a warrant, so long as the stated purpose of the roadblock is to catch drunk drivers. Even if these roadblocks generally serve only as revenue generators for local police, so long as the stated reason is to stop DWI, and there’s no reason to doubt the cops’ good faith, the roadblocks are legal.

In just the last few years, the Michigan legislature has considered legislation to abolish qualified immunity and to cease indemnifying police officers who violate the civil rights of residents. Should either policy become law, it seems likely that the Michigan Supreme Court could be asked to review those and any other reform bill the legislature might pass.

The fact that Michigan elects its Supreme Court justices only compounds the problems with what Bernstein said. Studies have consistently shown that, as the Brennan Center put it, “the pressures of upcoming re-election and retention election campaigns make judges more punitive toward defendants in criminal cases.” Sitting justices tend to avoid interfering with the elections of their colleagues. That Bernstein spoke out of turn to criticize Bolden — and that he’s a fellow Democrat — makes his criticism all the more stinging and potentially effective in a campaign, regardless of its merit. Bolden was appointed to fill a vacancy, and will have to win an election in 2024 to retain her seat. It seems a safe bet that her opponent will use Bernstein’s quotes against her to paint her as pro-criminal or anti-cop.

I would hope Bernstein’s clear politicization of the court won’t have a coercive effect on how Bolden or other justices might rule in criminal justice cases. But again, there’s plenty of evidence that at least collectively, when elected justices are attacked as soft on crime, it makes them and their colleagues less sympathetic to the accused and more sympathetic to law enforcement.

As for Justice Bernstein, perhaps he can set aside his own biases and decide police cases fairly. But how would we know? If he rules in favor of law enforcement, how would we know it wasn’t due to his openly stated bias instead of a fair hearing of the facts and the applicable state and federal law? If he rules against law enforcement, how would we know he isn’t overcompensating to demonstrate his independence?

In another recent quote about Martel, Bernstein said, “He can do great things as an advocate, but this court should not be advocates."

He’s right. A state supreme court should not be a platform for advocacy. That’s why Richard Bernstein needs to resign.