Eric Posner on How Conservative Religious Values and Libertarian Values are Combined in Legal Assaults on COVID-19 Emergency Measures

Legal assaults on coronavirus shutdowns threaten to undermine the liberal state

Governors who have their hands full with a public health crisis, economic calamity and an erratic president face a new challenge from an unlikely source: the courts. The Michigan Supreme Court held earlier this month that Democratic Gov. Gretchen Whitmer’s emergency shutdown measures violated that state’s laws and constitution — and last month, a U.S. district court struck down similar orders issued by Gov. Thomas Wolf (D) in Pennsylvania.

Those were the two most dramatic cases, but other courts have blocked shutdown orders on behalf of religious organizations that have argued that the decrees violate their constitutional right to congregate. The limits on executive action articulated in these cases are so severe that public health authorities will be hard-pressed to protect citizens as the second wave of the pandemic crests over the next several months.

To be sure, not all judges have struck down shutdown orders, but the legal trend on display is a significant one, and the ramifications of these rulings will go well beyond the pandemic. Coronavirus legal challenges represent the logical culmination of a trend among many judges in which socially conservative religious values are linked to business-oriented libertarian values to oppose the system of administrative government that has played a foundational role in progressive and liberal politics since the New Deal.

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