"A Warning From Michigan: The state previews how far Republican judges will go to obstruct Democrats in office."

Last week, in a 4–3 party-line vote, Republican judges on the Michigan Supreme Court invalidated a law that had empowered a historically popular Democratic chief executive to take emergency actions to combat COVID-19. The basis for the decision was an antiquated doctrine that conservatives on the United States Supreme Court have signaled they want to revive. 

That brazen ruling in Michigan previews where the U.S. Supreme Court might take the country, especially with the breathing room that a 6–3 conservative supermajority would create. Although the news media have mostly focused on what a Justice Amy Coney Barrett would mean for abortion and gun rights, her confirmation may pose a more fundamental threat to good governance. The United States Supreme Court, like the Michigan Supreme Court, may become an even more stridently partisan instrument than it already is, one that by design will frustrate Democratic efforts to govern. 

Like other governors around the country, Michigan’s Gretchen Whitmer declared a state of emergency in March and enacted aggressive emergency measures to fight COVID-19. Those efforts found support in two separate laws, one of which—the Emergency Powers of Governor Act—was adopted in 1945. 

By mid-June, statewide cases had dropped to fewer than 200 a day from a peak of more than 1,600. A study out of Imperial College London and the University of Oxford suggested that Whitmer’s efforts saved as many as 74,000 lives. (Full disclosure: I served as special counsel to Whitmer on her COVID-19 response and aided in drafting many of her executive orders.) Ronald J. Krotoszynski, Jr.: States are using the pandemic to roll back Americans’ rights. 

As in other states, lawsuits challenging the governor’s executive orders came fast. Republican judges proved receptive, even when the legal arguments were appallingly thin. Three months into the pandemic, for example, a federal judge in Grand Rapids declared that the governor’s statewide closure of gyms was so irrational as to be unconstitutional: “At this point, the bare assertion that gyms are dangerous is not enough to demonstrate a ‘real or substantial’ connection to public health, nor is it a set of facts establishing rational basis to justify their continued closure.” The judge’s decision was so far out of line that it earned him a swift, unanimous rebuke from an appeals court. 

Another example was a 13-page concurring opinion from a Republican judge excoriating Whitmer for her COVID-19 emergency orders—in a case that had nothing to do with the pandemic (at issue was an emergency rule prohibiting the sale of flavored nicotine pods for e-cigarettes). “Totalitarianism,” the judge intoned, “has no place in America.” 

The judge’s rhetoric was so extreme, it bordered on parody: “Will we live under the thumb of autocrats in the hope that they will keep us safe? The world of our children and grandchildren hangs in the balance.” But the paranoid suspicion of government should be recognizable to anyone familiar with the conservative legal movement. As Chief Justice John Roberts has warned darkly, “The danger posed by the grow­ing power of the administrative state cannot be dismissed.”

Whatever happened to the Unitary Executive? 

Democrats are in favor of executive command decisions if the executive is popular with Democrats. 

pendulums again.

We need an educated populace. We don't have one.