State Supreme Courts have been in the news even more than usual over the past twelve months given the extraordinarily high profile cases they are now dealing with. As states around the country enacted various COVID restrictions, many residents brought challenges to those restrictions based on their state constitution. In Virginia, the state Supreme Court dismissed a challenge from small business owners; and in Kentucky, the state Supreme Court recently heard a similar case in which the state’s Attorney General sued the state’s governor over the restrictions. These cases are another example of the amount of power state Supreme Courts can wield; since many of the legal complaints are based on state law, the state Supreme Court is the final arbiter of these questions.

Last month a federal judge in Michigan took the extraordinary step of asking the Michigan Supreme Court to provide an advisory opinion regarding the constitutionality of Governor Gretchen Whitmer (D)’s stay-at-home orders. Over the past weekend the Michigan Supreme Court issued its decision: the Governor’s pandemic-related orders were unconstitutional. The Governor had claimed the power to extend the state of emergency beyond April 30, 2020, when the legislature’s authorization expired. The Court not only rejected this claim, but held that the enabling legislation used by the Governor to extend the order was unconstitutional because it violated the separation of powers: “[T]he Emergency Powers of the Governor Act is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government– including its plenary police powers– and to allow the exercise of such powers indefinitely.”

Michigan is one of the few states which could switch party control in this election–Republicans currently have a four-to-three majority, and a Republican and Democratic seat are both being contested.

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