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Progressive federalism to combat judicial extremism

Aug 22,2022 - Last updated at Aug 22,2022

BERKELEY  —  During its last term, the US Supreme Court’s conservative majority openly acted against the American people’s interests and preferences on abortion rights, gun control and climate change. And the Court’s majority is now threatening further action, again in defiance of public opinion, to restrict contraception and voting rights. Politics and theocracy have replaced legal restraint and precedent in the Court’s decision-making process.

Ultimately, Congress will need to pass new legislation to restore the rights that the Court has rescinded. But with deep ideological and political divisions in both congressional chambers and procedural rules (the filibuster) requiring a 60 per cent vote in the Senate, any such action is likely to come slowly. All is not lost, however, because US states can aggressively leverage their own constitutional powers to preserve Americans’ liberties. The Tenth Amendment holds that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Consistent with this principle, states and even cities often cooperate with the federal government to implement national policies or to enact their own measures bolstering them. But the tenth amendment also provides the constitutional basis for states and cities to challenge or resist federal policies. Thus, in recent years, states like California and New York, and cities like San Francisco and Austin, Texas, have used “resistant federalism” to pursue policies and protect rights supported by the majority of their citizens.

On abortion, California Governor Gavin Newsom’s administration has signed multistate pacts to defend access to reproductive care, extended health-care funding to all residents (including the undocumented), eliminated co-pays for abortions, and introduced a constitutional amendment codifying the right to abortion. Similarly, Michigan citizens turned in more than 750,000 signatures in record time to put a “Reproductive Freedom for All” constitutional amendment on the November ballot, and citizens in Vermont will be voting on a similar provision.

Polling suggests that these measures command roughly 70 per cent support and will likely pass. And voter turnout is likely to be high in many other states with contentious elections. In Kansas, a Republican-leaning state, 59 per cent of citizens in a high-turnout vote recently rejected a proposed constitutional amendment stating that there is no right to abortion. Moreover, an analysis by Nate Cohn of The New York Times suggests that voters in “more than 40 of the 50 states” would vote the same way as the Kansas majority if given the chance, the exceptions are a few southern states, Utah and Wyoming.

Voters are signalling that they will not tolerate the kind of theocratic extremism that Supreme Court Justice Clarence Thomas intends to pursue through additional new restrictions on reproductive and marriage rights. And, thanks to resistant federalism, women will be able to access abortions and reproductive-health services by travelling to states that continue to uphold these rights. Indeed, many businesses have already announced that they will cover the costs of travel for their employees from the 22 states that are committed to banning abortion.

But the availability of these services in progressive states may not help many low-income women who rely on Medicaid in their states of residence. Medicaid pays for 42 per cent of all births in the US. Because it is a partnership between the federal government and the states, however, Medicaid depends on state as well as federal funding. Of the 12 states that have not adopted the Medicaid expansion offered under the Affordable Care Act (Obamacare), all have limited post-birth maternal and childcare coverage, and seven have abortion bans.

The Supreme Court’s latest ruling limiting gun-safety laws will have equally life-threatening consequences. This year alone, there have already been more than 300 mass shootings, shattering lives around the country.

Again, California has been leading on sensible gun-control measures to limit some of the damage. For more than 20 years, except for two years during the pandemic, its rate of firearm violence has fallen consistently, giving the state one of the lowest firearm mortality rates in the country. People are less likely to die from a gunshot in California than almost anywhere else in the country, and they are 25 per cent less likely to die in a mass shooting. These figures are the direct result of legislation, including assault-weapons bans, red-flag laws, long waiting periods for gun purchases, universal background checks, mental-health reporting, and age limits, that have halved gun deaths since the early 1990s.

Even in states like Texas, many of these measures command majority support. On this issue, as on reproductive rights, the Court has shown itself to be out of step with the majority of American citizens. The answer is to leverage the underused powers that the Constitution gives to states and citizens, as a new movement of grassroots progressive federalism is already doing.

The first Progressive Era occurred in the early twentieth century and produced a host of political and economic reforms that made government at all levels more honest, more democratic, and more effective at providing opportunities for all citizens. Its overarching goals were to strengthen American democratic institutions and to spread the gains of economic progress more broadly. The same goals resonate with most Americans today, even those who distrust the federal government but continue to trust state and local officials to serve their interests.

The Supreme Court has left Americans with no alternative. In state after state, a new era of progressive federalism is now at hand.


Laura Tyson, a former chair of the president’s council of economic advisers during the Clinton administration, is a professor at the Haas School of Business at the University of California, Berkeley, and a member of the board of advisers at Angeleno Group. Lenny Mendonca, senior partner emeritus at McKinsey & Company, is a former chief economic and business adviser to Governor Gavin Newsom of California and chair of the California High-Speed Rail Authority. Copyright: Project Syndicate, 2022.

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