- The Washington Times
Sunday, July 31, 2022

The Supreme Court delivered a significant boost to federalism with its ruling returning abortion decisions to the states, but court watchers say the justices’ overall approach is more of a mixed bag when it comes to states’ rights.

Just a day before the abortion ruling, the justices announced a decision wiping away state laws that limited the issuance of concealed weapons permits.

In each case, the Republican-appointed justices who wrote the decision said they were adhering to original constitutional principles. The differing outcomes for states left some critics confounded.

“Such a contradiction,” said House Speaker Nancy Pelosi, California Democrat. “The hypocrisy is raging.”

Elliot Mincberg, senior fellow at People For the American Way, said the justices are only after specific policy results.

“What really unites all these cases, whether the state wins or loses, is an ideologically far-right point of view by the majority,” Mr. Mincberg said. “It is our ideology or the highway. We have the control, and we are going to exercise it, and sometimes it helps the states and sometimes it doesn’t.”

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Josh Blackman, a professor at South Texas College of Law, acknowledged the tension between the gun and abortion rulings.

“You can reconcile them by saying abortion is not in the Constitution, while the Second Amendment is listed, but that explanation is not very helpful,” Mr. Blackman said. “In general, I think the court is trying to get the judiciary out of the business of deciding contentious issues.”

Indeed, that was what Justice Samuel A. Alito Jr. said in the majority opinion in Dobbs v. Jackson Women’s Health Organization, the abortion case.

Justice Alito said abortion rights weren’t on the minds of the founding generation or the one that wrote the 14th Amendment. The two sources were identified as the basis for a right to abortion by the 1973 court that decided Roe v. Wade.

States largely regulated abortion at the time, and the Constitution as written did nothing to abrogate that, he ruled.

The gun rights case, New York State Rifle & Pistol Association v. Bruen, was different because the founders did envision broad permission to own and carry firearms, Justice Clarence Thomas wrote in the majority opinion.

The justices, in a flurry of activity at the end of June, also bolstered state legislatures’ authority to intervene to defend the laws they enacted and ruled in favor of Republican-led states that sued to stop the Environmental Protection Agency from claiming powers to broadly regulate greenhouse gas emissions.

In West Virginia v. EPA, the justices said Congress could have given the EPA that power but didn’t.

Lisa Nelson, CEO of the American Legislative Exchange Council, a nonprofit focused on limited government, said the Roberts court is focused on federalism.

“The justices are rolling back decades of federal administrative creep and overreach. This return of power to the states will lead to better government for generations to come,” Ms. Nelson said.

Ilya Shapiro, a senior fellow at the Manhattan Institute, said each of these cases lands in a different area of law but yields similar results. 

“They don’t have anything in common other than that they achieved policy results that conservatives like,” Mr. Shapiro said. “In terms of the jurisprudence, it is fair to say the Supreme Court is enforcing federalism and the separation of powers.”

States’ rights will return to the fore of the court’s docket when the next term begins in October.

The justices are slated to settle whether state legislatures or state courts have the final say over rules for state elections. That case, Moore v. Harper, comes to the justices from North Carolina.

The high court is also weighing a case involving the Indian Child Welfare Act of 1978 and whether a state has authority over where to place children or whether tribal law reigns supreme.

A date for oral arguments in those disputes has not been scheduled.

• Stephen Dinan contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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