There’s an old adage to the effect that there is more than one way to skin a cat. I thought about that when I read a recent opinion column in the New York Times, focusing on Mitch McConnell’s packing of the federal bench with rightwing judges.
The article began by acknowledging that McConnell and Trump–enabled by their allies in the Senate– have packed the federal courts with more than 200 conservative judges over the last four years. Their remaking of the federal judiciary includes three Supreme Court justices, and is part and parcel of the rightwing effort to achieve what it could never manage to achieve through legislation– “including eliminating health care for millions and undermining what remains of the Voting Rights Act.”
The authors of the essay remind readers that we are not entirely helpless in the face of this ideological takeover; they advocate taking a page from the conservatives and forging “a new form of progressive federalism.”
First, state elected officials must be ready to respond quickly to, or act in advance of, rulings from the Supreme Court. If, for example, the Affordable Care Act is weakened or struck down, Democratic state legislatures should have bills drafted to introduce that day to protect people who will lose coverage. And officials must act now to protect and expand access to reproductive health care — especially for poor women and women of color — given the clear threat to Roe v. Wade.
Are excessively business-friendly federal courts making it easier for companies to pollute? Harder for government agencies to address racism? Progressive states can pass policies “to patch holes ripped open” by those courts.
if the Supreme Court further constrains the Consumer Financial Protection Bureau, states can go after corporations for violations of state securities and consumer protection statutes. If the court adopts cramped readings of federal environmental statutes, state regulators must use their tools to go after the country’s largest polluters. And if the court continues to undermine federal bribery laws, state attorneys general can bring corrupt politicians to justice under state criminal law.
What about states like Indiana, deep red and highly unlikely to follow that prescription? In those states, progressive advocacy groups and lawyers outside government can bring lawsuits to enforce rights protected by state constitutions. When I was Executive Director of Indiana’s ACLU, our affiliate brought such suits, and several were successful. And in the early days of the gay rights movement, organizations like Lambda Legal and the ACLU achieved state-by-state victories that ultimately helped change a nationally homophobic legal environment.
Recently, Nevada became the first state in the country to officially protect same-sex marriage in its Constitution. As the essay reminds us, several states have refused to allow their police take part in the federal government’s immigration crackdown. States
can rely on conservative decisions that promote state independence from the heavy hand of Washington. The very jurisprudential tools that make it harder for Washington to achieve progressive aims can empower states to do so instead.
Ironically, the same federalism that facilitated slavery and Jim Crow under the veil of “states’ rights” can be turned to progressive ends.
It’s slower and will take more work, but there’s more than one way to skin that cat.