Supreme Court’s Bernstein works around blindness
Lansing — Long work days and intense memorization are part of the job for Michigan Supreme Court member Richard Bernstein, who is blind and says justice should be, too.
The 41-year-old marathon runner, elected to the high court in November, is making his own personal case that there’s nothing people with disabilities can’t do if given just a little assistance.
Bernstein has a state-paid assistant who goes through as many as 26 cases with him each week, reading him the key details over and over until they’re embedded in his brain. Tim MacLean, 26, of Birmingham, also shuttles him to work and his many weekly engagements.
Hiring MacLean was the state’s chief accommodation. Bernstein takes it from there, putting in grueling sessions that allow him to remember thousands of case details and often leave his head reeling.
“I understand what it’s like to be blind and face those challenges, but at the same time... listen I’m not shy about it, I was born into an affluent family. I got the best of schools. I got the best of everything,” said Bernstein, whose education included Andover High School in Bloomfield Township and the University of Michigan in Ann Arbor.
“So I not only was born with the experience of being blind, but I also was blessed with the resources and the opportunity to take that experience and do something with it.”
Bernstein, who effectively replaced retired 32-year veteran liberal Justice Michael Cavanagh on the bench, is one of two Democrat-nominated justices on a court dominated by five conservative, Republican-nominated justices.
He has participated in eight cases for which the court has released opinions. Most were low-profile, unanimous decisions. High-profile cases involving issues such as the state’s right-to-work law and state worker pension changes are expected to be released during the next month.
But two of the decided cases provide a brief early glimpse of Bernstein’s judicial philosophy.
He was the lone dissenter in a case involving the drowning death of 19-year-old William Beals at a Plainwell residential facility that offers vocational and technical training of students with disabilities under the oversight of a state agency.
The court’s five Republican-nominated justices and one other Democratic justice ruled the lifeguard, even though he was distracted from his duties, was protected by broad governmental immunity from being sued because the immediate and direct cause of Beals’ death was “that which caused him to remain submerged in the deep end of the pool.”
Bernstein reaches out
Bernstein disagreed in blunt, first-person terms.
“I believe the lifeguard’s failure to rescue the deceased was the one most immediate, efficient and direct cause of death,” he wrote. “Although an autopsy indicated that the deceased died by drowning, there is no evidence as to how this came to pass.”
He argued Beals’ mother should be allowed to sue the lifeguard under a legal exception because “it seems clear that it is the lifeguard’s failure to ensure effective and continuous surveillance of the students that was the one most immediate, efficient, and direct cause of death.”
In an Oakland County case, Bernstein wrote a more complicated, legalistic majority opinion. He and three other justices ruled that a Holly woman wasn’t immune from prosecution for harvesting marijuana simply because her husband is authorized for a medical marijuana growing operation — because he wasn’t in full compliance with a state law.
He also said the sticky notes Cynthia Ann Mazur used to mark harvest dates for the marijuana her husband was growing and gave to him could not be used as evidence against her in a case involving drug possession and delivery. The three other justices agreed with parts of the decision and disagreed with other portions.
Bernstein was randomly selected to write the opinion, which is court practice. But he said he had to consult closely with the other justices while composing the ruling to ensure he didn’t lose support for the decision he wrote.
Bernstein wants the court’s reach to extend beyond its sixth-floor quarters atop the domed postmodern Hall of Justice dominating the west end of the Capitol mall.
Earlier this year, he toured the state prison system’s inmate processing center in Jackson to better understand the impact of criminal penalties judges mete out. He wants to foster stronger coordination between judges and corrections officials.
In March, Bernstein participated in a conference with 85 reform-minded judges in Juarez, Mexico. His involvement, arranged through the U.S. State Department, was a symbolic show of support for the Mexican government, he said.
Began with family firm
After graduating from Northwestern University Law School, Bernstein joined the law firm headed by his dad, Sam, whose familiar name helped his successful Supreme Court campaign in the fall. He campaigned on a slogan that justice “should be blind.”
In the Sam Bernstein Law Firm of Farmington Hills, he headed a division that handled pro bono disability rights litigation worth hundreds of thousands of dollars.
Joining the Supreme Court was about his combined passions for the law, the disabled and the disadvantaged. He brings a similar energy to his case preparation.
It would be impossible to have so much material converted to Braille, Bernstein explained, so he needs a “massive” effort to “internalize” each case in preparation for the weekly conference with his colleagues. The justices review 20-26 cases and decide which they will accept for oral arguments and rulings.
The Michigan justices also have altered their conferences to accommodate Bernstein. The procedural history of each now is read aloud, tracing its movement through lower courts, how each court decided it and why.
That’s crucial because it’s his “trigger.”
“It allows me to recall the case in its entirety,” he said.
Bernstein claims no special ability. Recall of each case, he said, must be achieved through hours of recitation, repetition and intense concentration.
John Nevin, the Supreme Court’s communications director, said Chief Justice Robert Young and the other justices discussed Bernstein’s needs with him before the current session began.
Bridget Mary McCormack of Ann Arbor, the other Democratic Party-nominated justice on the court, was chosen “to make sure Justice Bernstein got settled in,” Nevin said.
“They’re almost like a family,” he said. “They’re working well together and cranking out opinions. One day a couple of weeks ago, they churned out 200 judicial orders.”
Bernstein said it’s his impression all of the justices are benefiting from the adjustments. Under Young’s leadership, the high court appears to have healed a mid-decade rift and regained its collegial spirit.
“This is a little bit more of a conservative court, and I tend to be a little bit more liberal. I don’t think that’s a secret,” Bernstein said. “But you’d be amazed how often we reach consensus.”
Ex-Supreme Court Justice Conrad Mallett Jr. said he’s proud of the justices for adjusting to “Ricky,” whom he has known since Bernstein was a youngster.
“This is a great thing,” said Mallett, now chief administration officer at the Detroit Medical Center. “Ricky might have very well brought the court closer together than they’ve ever been, and it’s partly by virtue of their wanting him to do well.”
‘Up to speed’
Sightless from birth, Bernstein has spent four decades developing the mechanisms and coping skills that now allow him to stay up to speed with the other six justices.
He said he routinely gets up around 4:30 a.m. and walks to a health club for six miles of jogging on a treadmill or 90 minutes of swimming before MacLean picks him up by roughly 7 a.m. for the drive to Lansing.
He needs the morning workouts to stay loose and stem lingering pain from a severe injury.
Bernstein was hit by a speeding bicyclist on Aug. 13, 2012, while in Manhattan’s Central Park preparing for what was going to be his 18th New York Marathon. He ended up in Mount Sinai Hospital for 10 weeks with a fractured pelvis and other injuries.
His lawsuit seeking a discussion with New York officials about how they could make Central Park safer for pedestrians, especially those with disabilities, still is pending.
He is traveling the state with Lt. Gov. Brian Calley to promote the hiring of people with disabilities. Their tour follows an executive order from Gov. Rick Snyder directing state government to set the example and guide businesses to make adjustments tailored to their special hires.
“We’re not talking about charity,” Calley said. “There are people who have a lot to offer. The necessary accommodations are very small and the benefits are worthwhile.”
The liberal justice has become an admirer and friend of the conservative Republican lieutenant governor, who has a daughter who has dealt with autism.
“The biggest obstacle facing people with disabilities is employment,” Bernstein said. “Eighty-five percent of the blind population is currently unemployed... It’s not because they can’t do the job. It’s because they haven’t been given the resources and the opportunities that I was given.”
Bernstein hopes to stay on the court until mandatory retirement at the end of the term in which he turns 70.
“But here’s the thing: I have to get re-elected,” he said. “... I got seven years and six months left (in his current term). And I really love this position because it’s perfect if you have a lot of energy and a lot of enthusiasm.”
Job: Justice, Michigan Supreme Court through 2022
Pay: $165,000 a year
Education: University of Michigan, Northwestern University Law School
Experience: Attorney at Sam Bernstein law firm in Farmington Hills; former member of Wayne State University Board of Governors