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The red-state drive to reverse the rights revolution of the past six decades continues to intensify, triggering confrontations involving every level of government.
In rapid succession, Republican-controlled states are applying unprecedented tactics to shift social policy sharply to the right, not only within their borders but across the nation. Just last Thursday, the GOP-controlled Tennessee House of Representatives voted to expel two young Black Democratic representatives, and Texas’s Republican governor, Greg Abbott, on Saturday moved to nullify the verdict of a jury in liberal Travis County. In between, last Friday, a single Republican-appointed federal judge, acting on a case brought by a conservative legal group and 23 Republican state attorneys general, issued a decision that would impose a nationwide ban on mifepristone, the principal drug used in medication abortions.
All of these actions are coming as red states, continuing an upsurge that began in 2021, push forward a torrent of bills restricting abortion, LGBTQ, and voting rights; loosening controls on gun ownership; censoring classroom discussion of race, gender, and sexual orientation; and preempting the authority of their Democratic-leaning metropolitan cities and counties.
This flood of legislation has started to erase the long-term trend of Congress and federal courts steadily nationalizing more rights and reducing the freedom of states to constrict them—what legal scholars have called the “rights revolution.” Now, across all these different arenas and more, the United States is hurtling back toward a pre-1960s world in which citizens’ basic rights and liberties vary much more depending on where they live.
“We are in the middle of an existential crisis for the future of our burgeoning multicultural, multiethnic democracy,” and the extreme events unfolding in Tennessee and other states “are the early manifestations of an abandonment of democratic norms,” Janai Nelson, the president and director-counsel of the Legal Defense Fund, wrote to me in an email.
The past week’s events in Tennessee and Texas, and the federal court case on mifepristone, extend strategies that red states have employed since 2020 to influence national policy. But these latest moves show Republicans taking those strategies to new extremes. Together these developments underscore how aggressively red states are maneuvering to block the federal government and their own largest metropolitan areas from resisting their systematic attempt to carve out what I’ve called a “nation within a nation,” operating with its own constraints on civil rights and liberties.
“It shows there really is no limit, no institution that is quote-unquote ‘sacred’ enough not to try to use to their advantage,” Marissa Roy, the legal team lead for the Local Solutions Support Center, a group opposing the broad range of state preemption efforts, told me.
This multipronged offensive from red states seeks to reverse one of the most powerful currents in modern American life. Since the 1960s, on issues including the legalization of abortion and same-sex marriage and the banning of discrimination on grounds of race or gender, the Supreme Court, Congress, and federal agencies have broadened the circle of rights guaranteed nationwide and reduced the ability of states to limit those rights.
Over the past decade, Republican-controlled states have stepped up their efforts to reverse that arrow and restore their freedom to impose their own restrictions on rights and liberties. Nelson sees this red-state drive as continuing the “cycle of progress and retrenchment” on racial equity through American history that stretches back to Reconstruction and the southern resistance that eventually produced Jim Crow segregation. “The current pendulum swing is occurring both in reaction to changing politics and changing demographics, making the arc of that swing that much higher toward extremism,” she told me.
The vote in the Tennessee House of Representatives, for instance, marked a new level in the long-term struggle between red states and blue cities. In most red states, Republicans control the governorship and/or state legislature primarily through their dominance of predominantly white non-urban areas. Over the past decade, those red-state Republicans have grown more aggressive about using that statewide power to preempt the authority of, and override decisions by, their largest cities and counties, which are typically more racially diverse and Democratic-leaning.
These preemption bills have removed authority from local governments over policy areas including minimum wage, COVID masking requirements, environmental rules, and even plastic-bag-recycling mandates. Legislatures have accompanied many of these bills with other measures, such as extreme gerrymanders, meant to dilute the political clout of their state’s population centers and shift influence toward exurban and rural areas where Republicans are strongest. In Tennessee, for example, the legislature voted to arbitrarily cut the size of the Nashville Metropolitan Council in half, a decision that a state court blocked this week. Many of the bills that red states have passed since 2020 making it harder to vote have specifically barred techniques used by large counties to encourage participation, such as drop boxes or mobile voting vans.
Republicans who control the Tennessee House took this attack on urban political power to a new peak with their vote to expel the two Black Democratic representatives, Justin Pearson and Justin Jones, who represent Memphis and Nashville, respectively. Though local officials in each city quickly moved this week to reappoint the two men, the GOP majority sent an ominous signal in its initial vote to remove them. The expulsions went beyond making structural changes to diminish the power of big-city residents, to entirely erasing those voters’ decision on whom they wanted to represent them in the legislature. Conservative legislatures and governors “have become so emboldened [in believing] that they can tread on local democracy,” Roy said, “that they are going all out and perhaps destroying the institution altogether.”
One of the most aggressive areas of red-state preemption this year has been in moves to seize control of policing and prosecutorial powers in Democratic-leaning cities and counties, which typically have large minority populations. In Georgia, for instance, both chambers of the GOP-controlled state legislature have passed bills creating a new oversight board that would be directed by state officials and have the power to recommend removal of county prosecutors. In Mississippi, both GOP-controlled chambers have approved legislation to expand state authority over policing and the courts in Jackson, the state capital, a city more than 80 percent Black. The Republican governor in each state is expected to sign the bills.
Tennessee legislators passed a bill in their last session increasing state authority to override local prosecutors. This week they went further. Although it didn’t attract nearly the attention of the expulsion vote, the Tennessee House Criminal Justice Committee on Tuesday approved a bill to eradicate an independent board to investigate police misconduct that Nashville residents had voted to create in a 2018 referendum.
In 2019, the GOP legislature had already stripped the Nashville Community Oversight Board of the subpoena power that was included in the local referendum establishing it. The new legislation approved this week, which is also advancing in the State Senate, would replace the board and instead require that citizen complaints about police behavior in Nashville and other cities be directed to the internal-affairs offices of their police departments. The legislation is moving forward just weeks after five former police officers were indicted in Memphis for beating a Black man named Tyre Nichols to death. “You would think that while the Tyre Nichols case is going on … that we would be really wanting more oversight, not less,” Jill Fitcheard, the executive director of the Nashville oversight board, told me. Coming so soon after the vote to expel the two Black members, the attempt to eradicate the oversight board, she said, represents “another attack on democracy in Nashville.”
Texas has joined this procession with bills backed by Governor Abbott and Lieutenant Governor Dan Patrick advancing in both legislative chambers to make it easier for state officials to remove local prosecutors who resist bringing cases on priorities for the GOP majority, such as the measures banning abortion or gender-affirming care for transgender minors.
But Abbott last Saturday introduced an explosive new element into the red-state push to preempt local law-enforcement authority. In a statement, Abbott directed the Texas Board of Pardons and Parole to fast-track consideration of a pardon for a U.S. Army sergeant convicted just one day earlier of killing a Black Lives Matter protester in 2020. Abbott, who had faced criticism from conservative media for not intervening in the case, promised to approve the pardon, and criticized the Democratic district attorney who brought the case and the jury that decided it in Travis County, an overwhelmingly blue county centered on Austin.
Although many Republicans are seeking ways to constrain law-enforcement officials in blue counties, Abbott’s move would invalidate a decision by a jury in such a Democratic-leaning area. And whereas the preemption legislation in Texas and elsewhere targets prosecutors because of the cases they won’t prosecute, Abbott is looking to override a local prosecutor because of a case he did prosecute.
Gerry Morris, a former president of the National Association of Criminal Defense Lawyers now practicing in Austin, told me that Abbott’s move was especially chilling because it came before any of the normal legal appeals to a conviction had begun. Morris said he can think of no precedent for a Texas governor intervening so peremptorily to effectively overturn a jury verdict. “I guess it means if you are going to kill somebody in Texas,” Morris said, “you need to make sure it’s somebody Governor Abbott thinks ought to be killed; because if that’s the case, then he’ll pardon you.”
The past week’s third dramatic escalation came from District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump with ties to the social-conservative movement. Kacsmaryk’s ruling overturning the FDA’s approval in 2000 of mifepristone was in one sense unprecedented. “Never has a court actually overturned an FDA scientific decision in approving a drug on the grounds that [the] FDA got it wrong,” William Schultz, a former deputy commissioner of the Food and Drug Administration, said on a press call Monday.
But in another sense, the case merely extended what’s become a routine strategy in the red states’ drive to set their own rules. Nearly two dozen Republican state attorneys general joined the lawsuit in support of the effort to ban mifepristone. That continued a steady procession of cases brought by Republican-controlled states to hobble the exercise of federal authority, or to erase rights that had previously been guaranteed nationwide.
The most consequential example of this trend is the case involving a Mississippi abortion law that the Republican-appointed Supreme Court majority used to overturn Roe v. Wade last summer. But shifting coalitions of GOP state attorneys general have also sued to block environmental regulations proposed by President Joe Biden, and to prevent him from changing Trump-administration immigration-enforcement policies or acting to protect LGBTQ people under federal antidiscrimination laws. Red states “have been very interested in opposing virtually every rule or guidance that would provide nondiscrimination protection to LGBTQ people,” says Sarah Warbelow, the legal director for the Human Rights Campaign.
All of these legal and political struggles raise the same underlying question: Can Democrats and their allies defend the national baseline of civil rights and liberties America has built since the 1960s?
Democrats have found themselves stymied in efforts to restore those rights through legislation: While Democrats held unified control of Congress during Biden’s first years, the House passed bills that would largely override the red-state moves and restore a set of national rules on abortion, voting, and LGBTQ rights. But in each case, they could not overcome a Republican-led Senate filibuster.
The Biden administration and civil-rights groups are pursuing lawsuits against many of the red-state rights rollbacks. But numerous legal experts remain skeptical that the conservative U.S. Supreme Court majority will reverse many of the red-state actions. The third tool available to Democrats is federal executive-branch action, such as the Title IX regulations the Education Department proposed last week that would invalidate the blanket bans against transgender girls participating in school sports that virtually all the red states have now approved. Yet federal regulations that attempt to counter the red-state actions may prompt resistance from that conservative Supreme Court majority.
And even as Democrats search for strategies to preserve a common baseline of rights, they face the prospect that Republicans may seek to nationalize the restrictive red-state social regime. Congressional Republicans have introduced bills to write into federal law almost all of the red-state moves, such as abortion bans and prohibitions on classroom discussion of sexual orientation or participation in school sports by transgender girls. Several 2024 GOP presidential candidates are starting to offer similar proposals.
The past week has seen Republicans reach a new extreme in their effort to build a nation within a nation across the red states. But the next time the GOP achieves unified control of Congress and the White House, even this may seem like the beginning of an attempt to impose on blue states the rollback of rights and liberties that continues to burn unabated through red America.
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Ronald Brownstein
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