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Progressive Federalism to Combat Judicial Extremism

Although the US Supreme Court’s conservative supermajority has declared war on rights that a majority of US citizens cherish, US states can still leverage their own constitutional powers to preserve Americans’ liberties. An era of progressive federalism is now at hand.

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, same-sex marriage, 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Ultimately, Congress will need to pass new legislation to restore the rights that the Court has rescinded.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% 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.

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