Recent Supreme Court decisions have, predictably, produced a lot of angry but largely uninformed reactions among the politically polarized media and activists on both sides of the political fence. I wouldn’t presume to know what is really in the private minds of each of the justices (a restraint not shared by some in the media), but can only judge them on their writings and decisions. It seems to me, if one ignores the emotional and political baggage around some of these rulings, that there is a clear thread in those decisions, and it is the issue of federalism.
The nation was founded as a federation of states, states who were reluctant to give up any more sovereignty to a central government than was absolutely necessary to hold the nation together and provide for effective common security against outside invaders. They had tried before, with the Articles of Confederation written in 1777 and finally ratified by all the states in 1781, but that document proved to be too weak to do the job, so they tried again at the Constitutional Convention of 1787, producing the constitution we currently have, which divided power between the individual states and a central federal government whose powers were fairly limited.
In the intervening decades there has been a natural tendency for the central government to grow in size, become more bureaucratic, and attempt to aggregate to itself more power over the states. The exigencies of World War II accelerated this trend toward more centralized power. In parallel with this, within the federal government itself each of the three branches have also pursued a natural bureaucratic tendency to try to grow their power over the other two. Thus the Supreme Court in Marbury v. Madison (1803) arrogated to itself the power to rule on the constitutionality of laws passed by Congress, a power not given them in the constitution. And in recent decades the Presidency has arrogated to itself powers constitutionally reserved to the Congress, which is why we have had a bunch of wars recently with no Congressional declarations of war, as required by the constitution.
Now a federated system has its strengths and its weaknesses. Having 50 states largely free to try different experiments certainly speeds the process of evolving new ways of solving social and political problems. For example, Alaska’s current experiment of trying ranked-choice voting in an attempt to reduce the partisan divide and force candidates to focus on serving those outside of their natural political base is interesting. It may work, or it may not. If it does, other states may adopt it. If not, it was worth the experiment.
In addition, we are a very large nation, or really 7 or 9 or 11 different nations, according to some authors. Californians have different problems, different values, and different issues than Iowans, Rural Montana faces different conditions than urban New York or rust-belt Michigan. The advantage of a federated system is that if one doesn’t like the policies (say the high taxes, or high home prices, or poor educational system, or the poor social network) of one state, one can vote with their feet and move to another state, which is what is happening currently, for example, with the exodus of people and businesses from high-tax, highly-regulated California to low-tax, lightly-regulated Texas, or the new exodus of remote workers from expensive big cities to less expensive suburbs in other states.
So I would argue that the real split in the Supreme Court in recent decades is not a political one between liberals and conservatives, though that is the narrative the media likes to push. The real split, I would assert, is between those justices who want to increase the power of the central government over the states, moving us from a federated system of states to a more European unitary system, and those who want to preserve the state’s power in a federated system, and even perhaps reverse the growing power of the federal government.
The majority opinion by the so-called “conservative” justices in recent cases have pretty much favored returning power to the states, and limiting the power of the federal government. The recent vaccine mandate ruling, which prohibited a federal government agency (OSHA) from requiring all large employers across the nation to force all their workers to get vaccinated, is one recent example. If Roe v. Wade is overturned, it will be on the basis that individual states, not a central government (and certainly not an unelected judiciary) ought to decide that moral question for themselves, presumably based on the majority moral position of the inhabitants of each state.
The current battle in Congress to pass a “voting rights” bill is essentially a move to take away from the states the power to set and administer their own election laws, a power reserved to them in the election clause (Article 1, section 4) of the Constitution, though with the proviso that Congress may alter those regulation by law.
The so-called “liberal” justices, on the other hand, have voted consistently to give the central government more power to impose and enforce a common position (generally a “liberal” position) on the entire population of the nation.
Clearly this is a difficult issue. The federated system has its problems. States have in the past adopted regulations and positions antithetical to the fundamental premises of the constitution. Slavery and subsequent segregation laws are the prime examples but by no means the only ones.
On the other hand, the flexibility and dynamism of 50 states “competing” with one another for population, labor and businesses has certainly proved more successful than the “central planning” model of unitary European and Asian systems. And in a nation as large and diverse as ours, heavily bureaucratic “one-size-fits-all” regulations from a central government tend to be inefficient.
This is a matter of balance. Opinions naturally differ about where the balance between state power and federal power ought to be. But a rational discussion about this balance of power would probably be far more fruitful than the emotional and largely irrational “liberal” versus “conservative” Supreme Court narrative pushed by the media.
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