In broad historical terms, this week’s hearings for Judge Amy Coney Barrett may not precisely be the end of the liberal era in Washington that began with the Warren court and has continued in ever-shallower form to this day. But it’s close enough. Barrett’s seemingly inevitable ascension to the Supreme Court likely spells the end of Roe v. Wade and other decisions of the liberal legal architecture, greater constraints on administrative authority, and a new era of muscular states’ rights. For liberals, it’s all pretty gloomy stuff: a hostile Supreme Court stocked with young (at least comparatively) and uncompromising conservatives and what Gary Gerstle, a professor of American history at Cambridge, described to me as the “paralysis…of central government” that could spell the end of liberal ambitions in Washington for years, if not decades.
But the cork-popping at the Federalist Society may be a tad premature. It is likely the close of an era, but it’s not clear that the new era is necessarily as hostile to progressive values as most assume. Liberals understandably recoil at the idea of states’ rights given its close association with the Jim Crow era and slavery. For much of American history, the institutions of segregation were protected by a federal system that gave states plenary authority over their own activities. The tight link between the states’ rights movement and segregationist policies led the political scientist William Riker in 1964 to remark that “if one disapproves of racism, one should disapprove of federalism.”
The mental link between federalism and regressive policies is understandable, but it’s not inevitable. Justice Louis Brandeis once touted the ability of states to “try novel social and economic experiments,” as Gerstle recently described in The Atlantic. More importantly, the largest and most powerful states in the country—California and New York among them—are increasingly shading blue, and increasingly aggressive in asserting progressive positions on climate change, workers’ rights, public health, and even immigration. Historically, liberals advocated for centralization of authority in Washington because states were obstacles to progress; now the opposite is true. There is no better example of this than climate policy and environmental regulation. David Uhlmann, a professor at the University of Michigan and the director of its Environmental Law and Policy Program, described a historical inversion: “The environmental law system in the United States was created in the 1970s, largely because state governments failed to prevent pollution and in dramatic ways, leading to the Cuyahoga River on fire, the Santa Barbara oil spill soiling the beaches of California, and hazardous waste sites in cities and towns across America. Today, the equation is reversed, with the federal government failing to act on climate and other pressing environmental issues, and states taking the lead.”
Liberal enthusiasm for local authority has increased exponentially in the Trump era. States have claimed the right to contest Washington on areas as diverse as immigration, environmental rules, drug enforcement, and the use of the national guard and federal police, and California has even claimed authority to regulate the conditions in federal immigration detention centers. All this has peaked during the pandemic, when states have relied on their inherent police powers to enact all sorts of public safety rules, banded together to procure emergency equipment and regulate travel, and in one of the more extraordinary moments of recent years, disputed the federal government’s oversight of food and drugs, as Governor Andrew Cuomo of New York did when he suggested that FDA-approved vaccines might be delayed in New York until the state made an independent judgment on safety. But the recent enthusiasm is a product of circumstances, rather than a philosophical shift. Erwin Chemerinsky, the dean of UC Berkeley School of Law, told me that the Democratic dalliance with states’ rights would happily end with Democratic control of the White House and Congress—and a new era of progressive legislation. It is an enticing vision, but it overestimates Congress’s ability to get things done, even in periods of unitary control. Congress’s lawmaking ability has been on a steep decline for decades, from a peak of 1,028 bills passed by the 84th Congress in 1955–56, to 498 in the 108th (2003–04), and 329 in the 114th (2015–16). An increasingly ineffective Congress, Gerstle argued to me, isn’t just a product of our difficult political moment, but the result of a half-century conservative effort to hollow out the center.
In recent years, a small band of legal scholars, Heather Gerken, the dean of Yale Law School, most prominent among them, have thrown their support behind a “New Federalism,” one that sees states as an effective route for progressive action. Some of that is what they call “uncooperative federalism,” the ability to frustrate federal action through lack of support or downright opposition. As Gerken has pointed out, the federal government depends on states and cities to implement everything from immigration laws to public health measures. Thanks to the conservative majority, the federal government is fairly limited in what it can do with uncooperative states: It can’t “commandeer” state resources and, despite President Trump’s bluster that he will cut off funding for sanctuary cities and the like, cannot financially sanction states in most situations.
More intriguingly, in a states’ rights world created by the conservative majority, states increasingly have the power to enact policies that have “spillover” effects into the rest of the country. It’s not entirely new: For years, Texas largely dictated the contents of school textbooks around the country by refusing to buy any textbooks that did not meet highly specific content requirements. California has for many years set the rules for auto emissions by implementing standards higher than the national standards created in Washington. No car manufacturer can afford to miss out on the California market or produce two different sets of cars, so in effect Sacramento, not Washington, determines emission standards in America. If the conservative majority reinforced by Barrett were to give states even more latitude, the impact of the buying power of California (now the fifth-largest economy in the world) and the cumulative regulatory power of liberal states could be transformative. Portland, Oregon, has for several years now taxed companies that pay their CEOs more than 100 times median worker pay. Portland’s tiny effort clearly has had no behavioral impact on the compensation practices of large companies, but its example reflects an underutilized ability of progressive legislatures to project extraterritorial authority.
Conservative courts have been inclined to defer to the inherent power of the states, believing in the constitutional principles that states are entities of general power, exercisable unless limited by some very specific constitutional norm. Barrett provided no window into her thinking on states’ rights, or much of anything else this week, but it is reasonable to believe that she would at least initially track the views of Scalia and other textualists. Chemerinsky, the Berkeley dean, characterized Scalia as deferential to state’s rights but also protective of companies complaining of inconsistent state regulatory schemes. We know that the conservative majority has been protective of local rights when it comes to conservative causes. It remains an open question of how consistent it will be when the states are pushing an avowedly progressive agenda. But given that the political paralysis in Washington is likely to persist, it’s worth divining the answer.
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