The most recent decisions of the Supreme Court have accelerated a trend of curtailing domestic federal authorities and national-level rights (outside of those related to religion and guns) and shifting or granting new authority to states & localities.
- In Dobbs v. Jackson Women’s Health Organization, the Court overturned the constitutional right to abortion, giving states and localities unfettered authority to restrict or ban the procedure. The decision set up potential future rollbacks of other constitutional rights that rely on the same “substantive due process” argument that Roe v. Wade was based on.
- In Oklahoma v. Castro-Huerta, the Court gave states new authority to prosecute state crimes committed on Native American reservations.
- In West Virginia v. EPA, the Court ruled that the environmental regulations in question ran afoul of the “major questions doctrine”. Importantly, the court signaled that it would be skeptical of Congress granting less-than-specific authority to federal administrative agencies that enable tackling evolving problems, from climate change to consumer product safety. In practice, with Congress frequently deadlocked and also lacking the expertise of administrative agencies, this means action on many issues will be left to states & localities.
These cases follow on previous rulings of the Roberts Court:
- In Rucho v. Common Cause (2019), the Court found that partisan gerrymandering is “nonjudiciable”, i.e. federal courts can’t rule on this topic, leaving this issue of redistricting solely to state governments.
- In Shelby v. Holder (2013), the Court eliminated key provisions of the Voting Rights Act, giving states & localities with a history of discrimination the freedom to change their voting laws and practices without federal preclearance.
This is the new normal
Given the ideological makeup of the Court, it is expected to accelerate this trend of decisions (and certainly not reverse it). Supreme Court reforms like those discussed by the Presidential Commission (e.g. this proposal for regularized appointments) show no signs of moving – and even if implemented would take substantial time to impact the law and federal/state/local policymaking dynamics.
No matter one’s perspective on how each of these cases should have been decided, the result is the same: our state & local representatives have been empowered to act where the federal government now can’t or won’t. The complex issues impacted by these decisions require representatives who understand and will effectively respond to the needs and interests of their full communities: developing, coordinating, and implementing policy, while building and maintaining political support for themselves and their actions.
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