Coronavirus powers ruling puts spotlight on Michigan Supreme Court election

Michigan Supreme Court Justice Stephen Markman, a conservative, wrote the majority opinion Friday that effectively ended Gov. Gretchen Whitmer’s ability to unilaterally issue executive orders during the coronavirus pandemic. He is not eligible to run for reelection, and who succeeds him will likely determine the ideological leanings of the court going forward. (Shutterstock)

A razor-thin Michigan Supreme Court decision that appears to doom Gov. Gretchen Whitmer’s ability to unilaterally issue COVID-19 emergency orders brings upcoming elections for the high court into the spotlight.

Friday’s 4-3 decision declared unconstitutional a 1945 law used by the governor to repeatedly extend her emergency powers, including mask requirements and crowd restrictions. All four justices in the majority were nominated by the Republican Party; the three justices in dissent were nominated by the Democratic Party.

On Nov. 3, two Supreme Court seats will go before statewide voters, with the court’s ideological leanings in the balance. One of those openings will fill the seat of conservative Stephen Markman, who penned the majority decision Friday and who is barred from running again because of his age.  

Related: Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers

How does the Michigan Supreme court work?

There are seven justices on the state Supreme Court. Each justice is either elected to the court or appointed by the governor when a vacancy opens. An appointed justice must win election in the next general election to keep their spot. Elected justices are given eight-year terms before they must run for re-election. There is a mandatory retirement age of 70.

While Supreme Court elections are considered nonpartisan, major political parties still nominate judges to the ballot. Party affiliations are not listed on the ballot, though their incumbent status is, making it more difficult to oust a sitting justice.

The current court has a 4-3 conservative lean, though Republican-nominated justices have at times voted with their more liberal colleagues on partisan issues. 

Bridget Mary McCormack is currently chief justice, a position elected by members of the court every two years. Her seat is one of the two up for re-election.    

Markman, who has served on the court since 1999, will see his term end at year’s end. 

Who is on the ballot for the two seats?

Seven Supreme Court candidates will appear on the Nov. 3 ballot. Two will be elected to the state Supreme Court, one for each term that is ending.

McCormack and Elizabeth Welch were nominated at the state Democratic convention in late August. If McCormack maintains her seat, and Welch, a former East Grand Rapids Board of Education member, is elected, liberals on the court will hold a 4-3 majority.

Whitmer appeared on CNN Sunday, and urged voters to vote “McCormack and Welch because we’ve got to have justices that do the right thing and follow the rule of law.”

Michigan Republicans nominated two justices to the ballot as well: Mary Kelly, a former St. Clair County prosecutor, and Brock Swartzle, who is on the Michigan Court of Appeals. If both are elected, they would help secure a 5-2 conservative advantage.

On Monday, Laura Cox, state party chair of the Michigan Republican Party, sent an email to supporters urging them to vote for Kelly and Swartzle, saying the ruling against Whitmer's "unconstitutional power grab" is a reminder that the GOP needs to turn out to keep a conservative majority on the court.

The Libertarian Party also has two nominees on the ballot: Kerry Lee Morgan and Katie Nepton. The latter would be the first ever Indigenous person to serve on the Michigan Supreme Court should she win in November. 

There is also a Green Party nominee in former Wayne County Commissioner Susan Hubbard.

What do we know about the candidates: 

Here is a brief summary of their backgrounds, with more information available on their websites, where they are available. 

Bridget Mary McCormack (Democratic nominated)

McCormack has served as chief justice since 2018, after being elected to the court in 2012. McCormack is the lone incumbent on the ballot. 

“McCormack believes the courtroom is one place where fairness should outrank strength, and where being right should matter more than being popular or powerful,” her campaign website states.

She came to the bench from the University of Michigan law school, where she helped to legal launch clinics to help domestic violence victims and exonerate the wrongfully convicted. She is devoted to “delivering on a promise that courts are independent, accessible, engaged with their communities and efficient,” per her official Michigan Supreme Court page

Elizabeth Welch (Democratic nominated) 

Welch “is an attorney, dedicated public servant and a fighter for justice,” according to her campaign website. She has previous experience as an attorney working with nonprofits and small businesses, while also being a trustee of the East Grand Rapids school board member She is former president of the Michigan League of Conservation Voters. 

Mary Kelly (Republican nominated) 

Kelly is a prosecutor who has “has dedicated her entire career to protecting families and children,” according to her campaign website. She has spent over 30 years as a prosecutor for St. Clair County, and also worked for private practices in the past. 

She was the lead attorney of the St. Clair County Criminal Sexual Conduct Unit and calls herself “a steadfast champion of the rights of victims.” 

Brock Swartzle (Republican nominated) 

Swartzle is a judge on Michigan’s 4th District Court of Appeals, and is an adjunct professor at Michigan State University. His website describes him as “a proven rule-of-law conservative”. As evidence of his conservative bona fides, he links on his website to rulings he said convey his judicial philosophy. 

He also describes himself as “a judge who does his level best, each and every day, to achieve practical justice in every single case, but a judge who also understands that perfect justice is our North Star rather than our regular port.”

Kerry Lee Morgan (Libertarian nominated)

Morgan is Of Counsel to Pentiuk, Couvreur & Kobiljak, a Michigan-based law firm that works in business law and commercial real estate matters. His areas of practice include “municipal law, employment discrimination, civil rights, labor law litigation, environmental law, educational policy and federal firearms law.”

“His background is uniquely suited to bring your freedoms back to life,” he writes, according to the candidate’s bio page on PoliticalBank.

Katie Nepton (Libertarian nominated)

Nepton is an attorney at the Nepton Law Firm, per her LinkedIn page, which is “focused on Estate Planning, Medicaid Planning, Social Security, Trusts, Wills, Powers of Attorney, and ensuring the very best is done for your family and your future.”

“I became an attorney so that I could help people better their future and resolve problems and issues quickly and respectfully,” her bio on her law firm’s website states.

Susan Hubbard (Green Party nominated)

Hubbard is a former Wayne County commissioner who serves on the Wayne County Circuit Court. Her website states that she is running for Supreme Court to “protect the people of our state by supporting our Constitution,” also mentioning her support of the decision made by the Michigan Supreme Court on Friday striking down the law Whitmer used to justify her extended emergency powers.

As county commissioner, she said she helped regulate noise pollution and water pollution in the Dearborn area.


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Buck Roberts
Mon, 10/05/2020 - 4:22pm

the ruling was 7-0 that she could not declare a new emergency April 30 when the legislature didn't extend! That was unanimous.

John Q. Public
Tue, 10/06/2020 - 10:05am

This raises an even more important question: Why on Earth do we think it appropriate that those running for a spot on our alleged neutral and independent supreme judicial body are nominated by private partisan organizations? The MSC decisions are almost entirely predictable in advance even by non-lawyers because the court is, for all intents and purposes, just an adjunct political party.

"Rule of Law" judge is just an inside joke that means "votes the way I want nearly every time, law be damned" much like "activist" judge means "doesn't vote the way I want".

John F. Brennan
Tue, 10/06/2020 - 10:46am

I am extremely disappointed and rightly concerned that the Governor and this magazine seek to make and convert this legal question into a partisan political determination.

There is little question that converting the government into a one person rule in the face of an “emergency” which can be declared and extended unilaterally by that same person is contrary to the State’s Constitution and representative government generally. You may as well retitle the office of the Governor to that of Supreme Leader for a term, and abolish the Legislature. Justices who would allow that, in any theory are suspect at best.

All tyranny starts of a good purpose and the support of the people, it just never ends well.

This pandemic is long past emergency status, it is now the new normal. It must be managed as life goes on. This virus is now with us and will continue to be in the future. We need to learn how to adopt to it and regain our productivity or all will be lost. We do not and cannot control this virus, but we cannot allow it to control us either.

This is not a time for one person rule, it is a time for unification and rational reaction.

The Governor, the legislature, the public health authorities nor the population as a whole cannot stop this virus. No one has ever claimed or promised that, however they act and order as if they could, causing ever more harm and disruption.
Could we all begin to deal with reality?

Thu, 10/08/2020 - 8:25am

"This pandemic is long past emergency status, it is now the new normal. It must be managed as life goes on. "

Why hasn't the GOP-led legislature proposed any laws consistent with the CDC recommendations then? Instead they obstruct while screaming outrage and spending over half a million dollars to sue the governor.

Tue, 10/06/2020 - 11:01am

The Supreme Court majority just rotates in the same paper spacecraft as the President and the head of the Michigan Senate. Gad, what brainpower!

Tue, 10/06/2020 - 11:11am

Hidden on your ballot, on the partisan side, is a place to vote for MI supreme court! I had no idea these guys were voted in. I bet a lot of other people didn’t know it either. You don’t notice it when you just select straight party ticket. McCormack and Welch are 2 that would be good choices if you support Whitmore.

moe green
Tue, 10/06/2020 - 4:09pm

Wish the site would quit giving out information that's not entirely correct. Justice's agreed seven to zero that it was unconstitutional to enact executive orders under the 1976 law. Stop reporting half of the story completely liberal site.

Wed, 10/07/2020 - 8:56am

It's not being reported because the unanimous decision regarding the 1976 law doesn't matter as much as the 1945 law. Whitmer was using the 1945 law as justification to extend her emergency powers past legislative approval. She wasn't arguing about the 1976 law because that one explicitly states that the legislature must approve an extension, which the legislature did not do back in April; therefore she was relying on the 1945 law. The 7-0 ruling just confirmed what everyone already knew.

Here is a right-leaning site giving an unbiased breakdown of the difference between the two laws:

Please understand what you are talking about before accusing this site of bias.

Wed, 10/07/2020 - 11:41am

The Republican hacks on the court are now a national laughing stock. To think that these clowns are going to make an unbiased decision is a bigger joke than they are.