Feuding over New Federalism: The Supreme Court’s Role in “Laboratories of Democracy”
Edited by Arya Kumar, Elizabeth Adams, Owen Andrews, and Sarah Ahmad
The debate over states’ rights vs. federal authority is an American tale as old as time. Under a federalist system, the United States navigates a tedious balance of power between the federal, state, and local levels of government. Through this structure, states have the opportunity to serve as vital testing grounds for public policy. By observing smaller-scale “experiments,” policymakers can discern potential benefits and consequences within a narrower scope before implementing federal legislation. New Federalism corrupts this pattern, returning too much power to the states and plunging them further into polarization. By deferring to states on highly contentious issues, the Supreme Court is catalyzing this process and venturing into dangerous territory, especially on matters of substantive due process.
By hosting policy experiments, states assume a “laboratory” role for our democracy. In his New State Ice Co. v. Liebmann dissent, Justice Louis Brandeis wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” Successful laboratories can fuel social movements and elevate policies to the national level.
As the first territory to grant women’s suffrage, Wyoming established a precedent for the eventual passage of the 19th Amendment, a prime example of Brandeis’ metaphor. The Brennan Center for Justice explains, “In the decade leading up to the 19th Amendment’s passage, 23 states granted women full or partial voting rights through a series of successful campaigns.” By using Wyoming and other states as preliminary testing grounds, policymakers had time to track the evolution of women’s suffrage, measure public opinion, and evaluate the benefits before enacting federal legislation. Under this "laboratory" model, lawmakers are equipped with a more comprehensive understanding of the will of the people, allowing them to create stronger legislation.
New Federalism flips this trajectory of policy experiments in reverse by shifting decision-making away from federal power and towards the states. By entrusting states with a broader purview, this system fosters an assortment of policy outcomes throughout the country based on varying views between individual states. Often, this approach emerges when politicians aim to counteract expansions of federal authority. For example, in alignment with New Federalism, President Nixon prioritized an expansion of states’ authority as a balancing act following President Johnson’s Great Society reforms. President Reagan’s administration further advanced New Federalism by promoting distinct separation between state and federal powers in a system resembling dual federalism.
In 2022, the Supreme Court reinforced New Federalism by removing federal protection for reproductive freedom and devolving abortion policymaking to the states in Dobbs v. Jackson Women’s Health Organization. The Dobbs decision overturned landmark reproductive freedom cases Roe v. Wade, which established abortion access as a fundamental right under the zones of privacy framework, and Planned Parenthood v. Casey, which reaffirmed Roe. Both cases relied on the idea of substantive due process, which often employs judicial activism through implied rights in the Constitution, including privacy.
By contradicting existing precedent for the reproductive rights established in Roe and Casey, the Supreme Court abandoned the principle of stare decisis—a legal concept directing courts to align with previous judgments—while simultaneously establishing a willingness to assault the very notion of substantive due process. Under New Federalism, rights that were once deemed nationally fundamental and worthy of federal protection become devalued as policy decisions vary between states.
Justice Clarence Thomas hailed Dobbs as a green light to reassess other landmark cases rooted in the Ninth Amendment, which protects unenumerated rights held by the people, and the 14th Amendment, which establishes equal protection and due process under the law. Specifically referencing Obergefell v. Hodges in his concurring opinion on Dobbs, Justice Thomas earmarked another prominent implied right for reassessment: the right to marry freely.
Since Obergefell was inspired by legal precedent established through state legislatures, overturning it would undermine one of the most successful examples of a laboratory of democracy. In the 2003 Goodridge v. Department of Public Health decision, Massachusetts granted marriage equality at the state level. After Goodridge, many states conducted similar experiments, which fueled a national movement. In total, 37 states and the District of Columbia legalized same-sex marriage prior to Obergefell in 2015. Each state’s experiment paved the way for the Court’s landmark ruling, which held that the right to marry is fundamental and enshrined it under federal protection.
Evidently, state-led experiments serve a vital role for the development of public policy. Given its potential to produce more tailored policies based on each state’s specific needs, New Federalism can be an appealing approach. Nevertheless, laboratories of democracy must be exercised within reasonable constraints. New Federalism can act as a healthy exercise for our democracy, but it poses grave risks when policy experiments treat human welfare and safety as collateral damage. With Dobbs, the Court crossed the boundary of reasonableness.
As deeply personal and consequential freedoms, reproductive rights and marriage equality should not evaporate when crossing state lines. Fundamental rights deserve federal protection and should not be swept up in the swinging political pendulum of policy experimentation. If the Supreme Court continues to rely on its reasoning from Dobbs, it is likely to undermine the core of substantive due process and reframe our federalist structure.
A one-size-fits-all style of governance is unsuitable for a republic of our size and diversity. As the Court enables New Federalism to take root, it endangers our delicate balance of power between states and the federal government. By revoking legal precedents that reinforce fundamental rights, the Court hinders the federal government’s ability to uphold its constitutional obligations to its citizens, especially those stipulated by the 14th Amendment’s Equal Protection and Due Process Clauses.
On the current docket, the Court will hear Little v. Hecox and West Virginia v. B.P.J., two transgender rights cases in connection to substantive due process under the 14th Amendment. Given the Court’s recent rulings in Dobbs, it seems likely to reaffirm a New Federalist approach by deferring to the states on policies for transgender athletes.
Partisan division threatens to take hold of policymaking if states are given discretion over high-stakes substantive due process issues. If left to their own devices, states on opposing ends of the political spectrum will likely protect the rights they view as fundamental, rather than legislating in a comprehensive manner. While Congress is no stranger to polarizing partisanship, federal legislation faces tougher scrutiny from a more diverse body before its enactment. Without as many roadblocks, states are liable to pass radical legislation with detrimental consequences for national unity. To maintain a healthy practice of policy innovation, the Court must refrain from drastically expanding the scope of states’ purview on fundamental rights. While laboratories of democracy can serve as essential tools within the public policy arena, New Federalism threatens to dismantle facets of substantive due process and exacerbate political disunity.