In The News

In The News

Saturday, November 28, 2020


By Michael Nichols
Categories: Michael J. Nichols

The Supreme Court of the United States issued one of the first opinions since Justice Amy Coney Barrett assumed her seat as associate justice right before the Thanksgiving holiday was to start. It was 5-4. Chief Justice Roberts, a Bush appointee, sided with the 4 democratic appointees of President Clinton and Obama, respectively. The case is Roman Catholic Diocese of Brooklyn, New York v Andrew M. Cuomo, Governor of New York. 592 US ___ (2020) and it was issued in the evening hours of November 25, 2020. The opinion struck down Governor Cuomo’s “tentacled” approach to controlling case numbers in New York City by creating “zones” and based on those zones, restricted numbers for people to be allowed in churches and synagogues at any one time. The Court held that strict scrutiny applied to analyze a restriction on First Amendment religious freedoms and that the restrictions at issue in this case could not survive that level of scrutiny.

The majority opinion was “per curiam,” that means it was not “authored” by any one justice. Some legal analysts who have taken the time to analyze her opinions from her days on the lower federal courts, opine that the language in the opinion suggests that Justice Barrett is the author. Thanks to our friends at SCOTUSBLOG (you should support it: go to I was able to read the opinion and the concurrence by Justice Gorsuch, another Trump appointee while on the stationary bike on Friday along with some analysis of other cases.

The background for this case, which was basically just the 2nd or 3rd case to analyze the power of an executive office-holder in a given state to legislate with the force and effect of laws in the face of the pandemic. The lead opinion says: “[m]embers of this Court are not public health experts, and we should respect the judgment of those with special experience and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten,” (Roman Catholic Diocese 592 US ___ (Slip Op p 3)(2020).” It is the sort of writing that we do not often see in opinions of somber, sober matters of great national interest from the Supreme Court of the United States (SCOTUS).

The passage about the constitution and the vacation and the sabbatical is not the only one in which the lead opinion or the Gorsuch concurrence jump out at me. There is an important area in which the concurring opinion spends time criticizing another concurring opinion but this one in the case, South Bay Pentecostal Church v Newsom, 590 US ___ (2020). That concurring opinion by Justice Breyer, treated with favor a case that many in the media and some legal observers have discussed: Jacobsen v Massachusetts, 197 US 11 (1905).

Here, Justice Gorsuch does not so much as rip apart the logic of the Jacobsen opinion but rips apart the applicability of that case, which was about the constitutionality of an immunization-requiring statute in the face of the swine flu, to situations in which governors use their emergency powers as a bridge to march across the separation of powers moat from the executive office to grab the law-making pen from the legislature and start drafting laws that control many areas of our lives. Where once I thought that Jacobsen posed a strong supporting argument for those who want Executive Orders (EO’s) upheld I do not hold the same opinion. It is important to note that in the NYC cases, the Court was analyzing First Amendment religious freedoms and per the opinion, the First Amendment analysis required strict scrutiny as the manner in which to analyze the need for the legislation and its effect on our rights.

The Gorsuch concurrence also seems to take a smack at those Governors around the nation who continue to legislate broadly at “this stage of the game.” The elephant in the room is that what is different between this NYC case and the South Bay case is the makeup of the Court. Justice Ginsberg has passed on, God rest her soul, and Justice Barrett is now on the court. Justice Gorsuch spends a few lines explaining that his view is that we know more about the virus now than we did in June when cases were first bubbling up to the SCOTUS docket. For example: “[e]ven if the Constitution has taken a holiday during the pandemic, it cannot become a sabbatical.” Also: “Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights,” (Roman Catholic Diocese, 592 US __ slip op pp 4-5 (2020).

Ambition: none of the people in leadership positions right now would be there without ambition. When you try to work your way up in politics at this level – either national or state – you have to set your sights on a goal and where you want to land when you achieve your ultimate goal. That means you are going to have to “carry water” for your party at some point along the way. You earn the right and/or buy the right to be considered to be a candidate. You join a team. That is not meant to be cynical: it is just how it seems to work. That team’s philosophy invariably bleeds into your world view. I try to promote an objective view of these things but let’s face it – I have a world view, too and it is one that is of a different perspective than what I possessed at 33 as opposed to 53.

From Justice Gorsuch to Governor Gretchen Whitmer (whose election I supported and who I still support – so there is your disclaimer) to Governor Andrew Cuomo, I do not believe that these people are driven by raw ambition in these times. Of course – politics seems through and that is what makes many of us cringe.

I continue to believe that most people who get into career paths like the ones who are leading states, courts and legislatures do so because they want to make a difference. You want to have an impact. The direction they take in times like these are in order to do the right thing and make a difference for the greater good in the moment. We all want history to smile on us. But, you have to give credit to all those people asking questions, making social media rants (some of them are funny; some of them sophomoric) because if at the end of the pandemic or whatever the end looks like, we have just one more person who is more informed about how our republican form of democracy works – I think the democracy is better off. Grouse away, sue away, debate away. Just remember that we are all Americans and we cannot turn our eyes away from the greater good.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.