Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original).

One of the risks of touting your record is that people might actually read it.  

The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

There is a Michigan statute directly on point here, MCL 500.3009(2), which states:

If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.(Emphasis added).

Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented.  

The majority reasoned:

The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.

I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper. Legislating belongs to the Legislature.

Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.

The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:

The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).

All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).

With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).

When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules.  

In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.