Chief Justice Clement’s resignation: What to know and expect

From the February 2025 Criminal Defense Newsletter
On February 19, 2025, Chief Justice Clement issued a statement notifying the public of her intent to resign from the Supreme Court no later than April 30, 2025. A short time later, the National Center for State Courts announced that she would begin serving as its next President beginning this Spring. This announcement raised questions about her legacy and successor, and how her departure may impact Michigan law.

Chief Justice Clement’s legacy

Chief Justice Clement was initially appointed to the Supreme Court by Republican Governor Rick Snyder in 2017. She emerged as a swing vote almost immediately, however, and has remained one throughout her tenure, even as the Court’s composition has shifted dramatically during the past eight years. 

One of the earliest and most notable examples occurred in 2018, when Justices Clement and Viviano joined the only two Justices nominated by the Democratic Party to affirm the constitutionality of a ballot proposal for independent oversight of redistricting. Citizens Protecting Michigan's Constitution v Secretary of State, 503 Mich 42 (2018). 

Even though some members of the party that was backing her reelection spoke out against her publicly because of her decision,1 Justice Clement was elected to a full term later that year just a few months later. 

Since her reelection, Chief Justice Clement has drafted several significant opinions, with a particular focus on criminal procedure and constitutional law. 
 
In People v Betts, 507 Mich 527 (2021), for example, then-Associate Justice Clement authored the majority opinion, which held that the 2011-amendments to the Michigan Sex Offender Registration Act constituted criminal punishment under the Ex Post Facto Clauses of the Michigan and United States Constitutions, and it could not be cured by merely striking its most punitive provisions. Justice Clement, writing for the majority in People v Davis, 509 Mich 52 (2022), recognized that defendants could not establish entitlement to relief for forfeited structural errors, and so placed the burden on the prosecution to demonstrate that plain structural errors do not seriously affect the trial’s fairness, integrity or public reputation in order to avoid reversal. And in People v Wood, 506 Mich 114 (2020), she wrote for the majority, which vacated the conviction of a man who was prosecuted for attempting to educate potential jurors about jury nullification. 

But Chief Justice Clement also wrote the leading opinion in People v Loew, __ Mich __ (2024) (Docket No. 164133), which held that a trial judge who messages to the elected prosecutor about the evidence in the defendant’s case as it was being presented may have acted unethically, but did not violate his right to due process because “the jury was unaware of the trial judge's communications with Prosecutor Koch, and there is no evidence that these communications affected how the jury was instructed or the substance of the jury's deliberation over a verdict.” She also dissented in People v Parks, 510 Mich 225 (2022), writing that automatic life without parole sentences for eighteen-year-olds is not cruel or unusual, and that “[a] line must be drawn.”

A new justice and a new chief

Under the Michigan Constitution, when a Supreme Court Justice resigns, the Governor has the exclusive authority to appoint her replacement. Const 1963, Art 6, § 23; MCL 168.404(1). To remain on the Court after the next general election, which will occur in November 2026, the newly appointed Justice must win reelection. The conventional wisdom is that Governors often attempt to appoint a Justice who will appeal to Michigan voters, but there only three actual restrictions on the Governor’s appointment discretion: (1) the appointee must be licensed to practice law in the state of Michigan, (2) they must have been admitted to practice law for at least five years, and (3) they must be under 70 years old at the time of their appointment. Const 1963, art 6, § 19.

There is no confirmation process for Michigan Supreme Court Justices. In September 2022, then-Chief Justice McCormack announced that she intended to retire by the end of that year. On November 22, Governor Whitmer announced that Kyra Harris Bolden would become the first Justice appointed to the Supreme Court since Elizabeth Clement was appointed to the Court in November 2017. Justice Bolden joined the Court on January 1, 2023, without receiving the Michigan Senate’s advice or consent. She was not required to answer questions about her judicial philosophy, defend her prior decisions or law review articles, or decline to comment on future issues that may come before the Court. In January 2023, Justice Bolden was sworn in and Justice Clement was unanimously selected by all seven Justices to serve as Chief Justice of the Court and the head of Michigan’s judicial system. Const 1963 art 6, § 3; MCL 600.152.

A new court and new dynamic

When Justice Clement was appointed to the Michigan Supreme Court in 2017, she was among five of the seven Justices appointed to the Court by a Republican Governor or nominated by the Republican Party. Since then, the ideological composition of the Court has flipped. Justice Cavanagh unseated Justice Wilder in 2018, Justice Welch was elected to Justice Markman’s open seat in 2020, and Justice Thomas was elected to Justice Viviano’s open seat in 2024. After Governor Whitmer appoints Chief Justice Clement’s successor, Justice Zahra will be the only member of the Court endorsed or appointed by the Republican Party.

There already appears to be some speculation about how the replacement of Chief Justice Clement with a more ‘liberal’ Justice could impact the outcome of important issues pending before the Court. But it is difficult to identify any criminal cases where simply flipping Chief Justice Clement’s vote would have resulted in a more favorable outcome for the defendant. In People v Loew, for example, Justice Bernstein was the only Justice who would have granted relief to the defendant. Justices Cavanagh and Welch dissented from the majority’s interpretation of the Code of Judicial Conduct, not the defendant’s due process right to a neutral judge and a new trial. Chief Justice Clement’s vote also did not affect the outcome of People v Posey, 512 Mich 317 (2023) (invalidating MCL 769.34(10), holding that unnecessary first-time in-court identifications violate due process, but denying the defendant a new trial because his attorney did not object to the procedure); People v Stovall, 510 Mich 301 (2022) (declaring juvenile’s parolable life sentence without an individualized hearing cruel or unusual but also deeming his plea bargain for that life sentence non-illusory); or People v Gafken, 510 Mich 503 (2022) (allowing defendants to raise duress as a defense to felony murder).

Justice Thomas, a co-founder of the Juvenile Justice Clinic at the University of Michigan, was sworn in less than two months ago, and has yet to author an opinion. She will soon be joined by another new Associate Justice. Both will help select a new Chief Justice. The widely held assumption is that the differing personalities on an appellate court have a significant impact on the court’s decision-making process, and ultimately, the decisions that it makes. If true, the Michigan Supreme Court’s decisions seem far more likely to be impacted by the new dynamic created by two new Justices and new Chief than by the former Chief’s single vote.

Chief Justice Clement was a thoughtful, open-minded, rules-oriented jurist. Criminal defendants, the defense Bar, and the State of Michigan are all likely to benefit if the Governor appoints a new Justice with similar qualities. 

Endnote

1 Paul Egan, Michigan GOP could drop support for judge over gerrymandering vote, The Free Press (Aug. 1, 2018) <https://www.freep.com/story/news/local/michigan/2018/08/01/gop-judge-gerrymandering-michigan/877968002/> (accessed February 21, 2025).

Steven Helton
Research & Training Attorney, CDRC