How This Season’s SCOTUS Rulings Could Give Conservatives More Power Over State Policy
June is playoff season for U.S. Supreme Court watchers. Each year, this is the month progressive organizations hold our breaths on certain weekday mornings, wondering which life-altering decisions will drop next. Unfortunately, we know that these referees will play favorites — if not having been bought outright — and they are almost certainly rigging the game for the other side.
An under-the-radar consequence of the Supreme Court’s 6-3 conservative supermajority is that it is poised to hand over unprecedented power to state governments, many of which are — not coincidentally — controlled by Republicans.
Conservatives have spent generations building an entire political apparatus designed to stack the federal courts with ideological judges. At the same time, they have focused on winning state legislative races, knowing that they are the key to redistricting and voting rights, and that once the judiciary had been captured by conservative ideology, it would give states more and more power.
While conservatives have been consistent and ruthless in their efforts to build both federal and state power, progressives have almost entirely neglected states in favor of a near-exclusive focus on federal strategies. Now, with the Supreme Court poised to dramatically expand state power, it’s time to shift our mindset. States can no longer be an afterthought — we need to understand state power as co-equal in importance to federal power, and we need to act accordingly. And that’s exactly what Sister District is doing by combining volunteer organizing and creative initiatives with an exclusive focus on building power in state legislatures.
Here are a few cases we’re watching and what they mean for expanded state power:
Chevron deference (Relentless, Inc. v. Dept. of Commerce and Loper Bright Enterprises v. Raimondo)
In oral arguments this January, the conservative majority appeared eager to trash a 40-year-old rule that courts should defer to federal agencies’ interpretations of congressional law when that interpretation is reasonable. This approach, known as “Chevron deference,” is a bedrock of federal law, reflecting a belief that experts — in public health, the environment, education, and other fields — should play a key role in translating the intent of congressional statutes into implementable regulations.If the Court tosses Chevron deference, it will blow up federal administrative law as we know it. Instead of deference to agency experts, it is the courts that would be given expansive authority to second-guess regulations.
As federal regulatory power becomes diminished, states will rush to fill the regulatory gap. And with the current composition of state governments, this could mean the rollback of consumer, environmental and health protections, and more.
Abortion (Moyle v. United States)
After Dobbs, the Idaho Legislature criminalized nearly all abortions, except those that are “necessary to prevent the death of the pregnant woman,” termination of an ectopic pregnancy or abortions that resulted from rape or incest in limited and burdensome circumstances. This ban conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to treat patients experiencing an emergency medical condition with stabilizing care, which may include an emergency abortion that doesn’t fall into one of the state’s limited exceptions. Medical providers are put in a bind — either leave the patient in crisis or provide the necessary stabilizing care and face potential prosecution.
Now is the time to recognize the immense potential of state legislatures as arenas for progressive change and innovation.
This case has broad implications. If the Supreme Court sides with Idaho, conservative state legislatures will eagerly propose even more extreme laws that subject pregnant people to an increasingly uneven and cruel patchwork of emergency abortion access policies. Currently, six states with total abortion bans make no exceptions for the health of the mother and doctors in states with unclear policies are more likely to err on the side of denying this care.
Additionally, the Court could use this decision to open the door to “fetal personhood,” the concept of treating embryos and fetuses as having the same rights as people. In this post-Roe era where states are in control, conservative legislatures could have even more leeway to restrict medical care and reproductive freedoms.
Mifepristone (Food and Drug Administration v. Alliance for Hippocratic Medicine)
Mifepristone is one of two drugs prescribed in the U.S. for medication abortions, and its long record of safety and efficacy has made it a prime target of conservatives who want a total nationwide ban on abortion. This case used the drug to challenge the Food and Drug Administration’s decisions on drug safety.
Thankfully, the justices dismissed the case based on lack of legal standing, handing abortion rights advocates a rare win. But conservative state legislatures have not slowed down their state-by-state crackdown on mifepristone.
And when the Court decided this case on procedural grounds and sidestepped the merits of the case, they also left open the possibility that states could step in as plaintiffs and revive the case. Regardless of what happens next, state legislatures controlled by both parties will continue to flex their tremendous power in a post-Roe world — Republicans to restrict access, and Democrats to expand it.
While tough losses may be ahead, all hope is not lost. Now is the time to recognize the immense potential of state legislatures as arenas for progressive change and innovation. The implications of this season’s Supreme Court rulings underscore the critical importance of states. The power shift means that state lawmakers are and will increasingly be on the frontlines of policymaking. State courts also play a critical and growing role in interpreting these policies. Governors, secretaries of state and attorneys general all will also have more opportunities to flex their muscles within their state and in coordination with aligned states.
States are ascendant. If we strategically invest in state legislative races and power-building across all branches, we can counterbalance the extreme bent of the federal judiciary and create a bulwark for democracy at the state level. It’s time to get out of our defensive crouch and even the playing field by embracing states as sites of creativity and power. The fight is far from over, and together, we can harness the power of the states to build a brighter, more democratic future.
Lala Wu is the executive director and cofounder of Sister District.