Tag: Erwin Chemerinsky

The struggle over the sweeping red-state drive to roll back civil rights and liberties has primarily moved to the courts.

Since 2021, Republican-controlled states have passed a swarm of laws to restrict voting rights, increase penalties for public protest, impose new restrictions on transgender youth, ban books, and limit what teachers, college professors, and employers can say about race, gender, and sexual orientation. Some states are even exploring options to potentially prosecute people who help women travel out of state to obtain an abortion.

In the early legal skirmishing over this agenda, opponents including the federal Justice Department have won a surprising number of decisions, mostly in federal courts, blocking states from implementing the new laws.

But eventually most of these issues are likely to be resolved by the U.S. Supreme Court, and the court’s six-member Republican-appointed majority has generally ruled in ways that favor the conservative social-policy priorities reflected in the red-state actions. That inclination was most dramatically demonstrated in last year’s Dobbs decision, when the Court overturned the constitutional right to abortion.

In the coming years, the Court will face a series of decisions on the new red-state agenda that may determine whether the U.S. maintains a strong baseline of civil rights available in all states or reverts back toward a pre-1960s world where people’s rights varied much more depending on where they lived.

“The idea of the Bill of Rights was that we would have a floor of civil rights and civil liberties that the states could not go below,” David Cole, the national legal director of the American Civil Liberties Union, told me. “But for that floor to be meaningful, it has to be enforced by the Supreme Court ultimately.

“In our history, the courts have sometimes done that courageously and bravely, and other times they have fallen down on the job,” Cole continued. “And when they have fallen down on the job, you get a two-tier system in this country.”

Since President Joe Biden’s election, the 22 states where Republicans hold unified control of the governorship and the state legislature have moved with remarkable speed to create a two-tier system on issues including abortion, classroom censorship, and the treatment of LGBTQ people. “The fact that all of this is happening on so many different fronts simultaneously is unprecedented,” Donald Kettl, a former dean and professor emeritus of the University of Maryland’s School of Public Policy, told me.

This broad red-state push to retrench rights, as I’ve written, is reversing the general trend since the 1960s of nationalizing more rights, a process often called “the rights revolution.”

Civil-rights advocates have limited options for reversing this tide of red-state legislation. So long as the Senate filibuster exists, Democrats have virtually no chance of passing national legislation to override the red-state actions on issues such as abortion and voting rights, even if the party regains unified control of the federal government after the 2024 elections.

Read: Why Biden just can’t shake Trump in the polls

In some states, opponents can try to rescind these measures directly through ballot initiatives, like the Ohio referendum that, if passed in November, would overturn the state’s six-week abortion ban. But not all states permit such referendums, and even in those that do, ballot measures to reverse many of the key red-state restrictions would face an uncertain fate given the underlying conservative lean of their electorates.

Opponents are challenging some of the new statutes in state courts. The Center for Reproductive Rights, a group that supports legal abortion, has cases pending in six states, including Ohio, Wyoming, Iowa, and Florida, arguing that abortion restrictions adopted since the Dobbs decision violate provisions in those states’ constitutions. But recent rulings by state supreme courts—in South Carolina, upholding the state’s six-week abortion ban, and in Texas, dismissing an injunction against the state’s ban on gender-affirming care for transgender minors—show the limitations of relying on red-state courts to undo the work of red-state political leaders.

“Sometimes the state courts provide a sympathetic venue,” Cole said. “But oftentimes in the red states, precisely because the courts have been appointed by red-state governors and legislatures, they are not especially open to challenges to their legislature’s laws.”

That leaves federal courts as the principal arena for those hoping to overturn the restrictive red-state laws.

These federal cases raise a range of legal arguments. Mostly they revolve around the claim that the state laws violate the U.S. Constitution’s protection of free speech in the First Amendment and the due process and equal protection provisions of the Fourteenth Amendment. As courts consider these claims, the key early federal rulings have covered cases involving a variety of issues.

Freedom of speech: In a striking victory for critics, a federal district judge in Florida issued two decisions blocking enforcement of Florida Governor Ron DeSantis’s signature Stop WOKE Act, which restricts how private employers and college and university professors talk about racial inequity. In one ruling, Judge Mark Walker called the law “positively dystopian.” He wrote: “The powers in charge of Florida’s public university system have declared the state has unfettered authority to muzzle its professors in the name of ‘freedom.’”  The Eleventh Circuit Court of Appeals has denied DeSantis’s request to lift Walker’s injunction against the law while the case proceeds.

Federal courts have also blocked enforcement of the Florida law DeSantis signed increasing the penalties for public protest. But another federal judge has twice dismissed a case attempting to block DeSantis’s “Don’t Say Gay” law restricting discussion of sexual orientation and gender identity in K–12 classrooms. (Opponents of the law are appealing that decision.)

Litigation against the multiple red-state measures making it easier for critics to ban books in school libraries has not advanced as far. But in May, PEN America, a free-speech group, together with Penguin Random House and several authors filed a suit against Florida’s Escambia County school district over the removal of titles about people of color and LGBTQ people that could become the bellwether case.

Abortion: Though the Supreme Court’s Dobbs decision preempted any frontal federal legal challenge to the state laws restricting or banning the procedure, abortion-rights supporters continue to fight elements of the new statutes.

In late July, a federal district judge blocked guidance from Raúl Labrador, the Republican attorney general of Idaho, a state that has banned abortion, warning doctors that they could be prosecuted for helping patients travel out of state to obtain the procedure. A separate federal lawsuit filed in July is challenging Idaho’s law imposing criminal penalties on adults who transport a minor out of state to obtain an abortion. The Justice Department won an injunction last year preventing Idaho from enforcing another portion of its abortion ban on the grounds that it violates federal law requiring treatment of people needing emergency care in hospitals.

“Dobbs overturned 50 years of precedent and got rid of the fundamental liberty right to abortion, but it definitely didn’t answer every question,” Amy Myrick, a senior staff attorney at the Center for Reproductive Rights, told me. “And federal courts are now being faced with a public-health crisis of enormous magnitude, so at some point they will have to decide whether a ban becomes irrational if it forces patients to get sick or even die based on what a state says.”

Immigration: Another front in the red-state offensive is an increasing effort to seize control of immigration policy from the federal government. The Biden administration last week won a federal-district-court decision requiring Texas to remove a flotilla of buoys it has placed in the Rio Grande River to repel undocumented migrants (though the conservative Fifth Circuit Court of Appeals put that ruling on hold just one day later). A coalition of civil-rights groups is suing Florida in federal court over a DeSantis law making it a crime to transport an undocumented migrant in the state.

Voting: As with abortion, critics have found a legal basis to challenge only provisions at the periphery of the voting restrictions approved in most red states since 2021. Last month, the Justice Department won a federal court ruling blocking a measure that Texas had passed making it easier for officials to reject absentee ballots. In July, a federal-district-court judge upheld key components of Georgia’s 2021 law making voting more difficult, but did partially overturn that law’s most controversial element: a ban on providing food and water to people waiting in line to vote.

LGBTQ rights: Federal litigation has probably progressed most against the intertwined red-state moves to impose new restrictions on transgender people. The Biden Justice Department has joined cases seeking to overturn the red-state actions on each of the major issues.

Two federal appellate courts have blocked policies requiring transgender students to use the bathroom (or locker room) of their gender assigned at birth, while the Eleventh Circuit late last year upheld such a law in Florida. Two federal circuit courts have also blocked the enforcement of laws in Idaho and West Virginia barring transgender girls from participating on female sports teams in high school, though a lower federal court has subsequently upheld the West Virginia law.

Of all the issues affecting transgender people, litigation against the statutes passed in 22 Republican-controlled states barring gender-affirming care for minor children, even with their parents’ approval, may reach the Supreme Court first. In a flurry of decisions made mostly this summer, multiple federal district courts have issued injunctions blocking the implementation of such laws in several states. One federal appellate court has upheld such an injunction, but two others recently overturned lower-court rulings and allowed Tennessee and Alabama to put their laws into effect. (After those decisions, a federal district court last week also allowed Georgia to enforce its ban.) Such a split among circuit courts could encourage the Supreme Court to step in, as do the momentous and timely stakes for families facing choices about medical care. “For families who have adolescents who need this care, some of whom have been receiving this care, it’s a matter of family urgency,” Jennifer Pizer, the chief legal officer at Lambda Legal, a group that advocates for LGBTQ rights, told me.

Although liberal groups and the Biden administration have been heartened by many of these early rulings, they recognize that the most significant legal fights are all rolling toward the same foreboding terminus: the Supreme Court.

Over recent years, the Court has restricted the ability of blue states to impinge on rights that conservatives prize while mostly allowing red states to constrain rights that liberals prioritize. The Court has displayed the former instinct in its rulings striking down gun-control laws in blue jurisdictions, allowing religious-freedom exemptions to state civil-rights statutes, and barring public universities from using affirmative action. Conversely, the Court has loosened restrictions on red states with the Dobbs decision and the 2013 Shelby County ruling effectively revoking the Justice Department’s authority to preemptively block changes in state voting laws.

Those who see this past as prologue believe that the current Supreme Court majority may provide the red states great leeway to establish a legal regime that defines rights much more narrowly than in the rest of the country. At various points in American history, the Supreme Court has certainly done that before, most notoriously in the 1896 Plessy v. Ferguson case, when the justices approved the system of “separate but equal” Jim Crow segregation across the South that persisted for nearly the next 70 years.

But several legal experts I spoke with said it was premature to assume that these recent rulings ensure that the Supreme Court will reflexively uphold the contemporary wave of red-state measures. Erwin Chemerinsky, the dean of UC Berkeley’s law school, told me that the Court’s decisions in recent years have advanced “what’s been the conservative Republican agenda for decades: Overrule Roe v. Wade; eliminate affirmative action; protect gun rights.” It’s less clear, Chemerinsky believes, what the Court will do with this “new conservative agenda” rising from the red states. Although the six Republican-appointed justices are clearly sympathetic to conservative goals, he said, “some of what the [states] are doing is so radical, I don’t know that the Supreme Court will go along.”

The ACLU’s Cole notes that the Court appeared to move more cautiously in the term that ended in June than it did in the 2021–22 session, which concluded with the cannon shot overruling Roe. With a few prominent exceptions headlined by the decision banning affirmative action in higher education, “civil rights and civil liberties did pretty well in the Supreme Court this term,” Cole maintained. “Much is still to be determined, but I think this term showed us that you can’t just assume that this Court is going to impose right-wing results regardless of precedent.”

Conservatives remain confident that this Supreme Court majority will not reject many of these new red-state laws. They see an early signal of how some of these fights may play out in the August decision by the Eleventh Circuit Court of Appeals allowing Alabama to enforce its law banning gender-affirming care for minors.

Written by Barbara Lagoa, who was appointed by Donald Trump, that ruling specifically cited the Supreme Court’s logic in the Dobbs case to argue that Alabama’s ban on gender-affirming care for minors would likely survive legal scrutiny. In Dobbs, the majority opinion written by Justice Samuel Alito said the Fourteenth Amendment did not encompass the right to abortion because there was no evidence that such a right was “deeply rooted” in American history. Likewise, Lagoa wrote of gender-affirming care that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”

Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies, predicted that such logic would ultimately persuade the conservative Supreme Court majority. “What we are seeing now is the use of the Dobbs framework in actual action,” she told me. “I think the Supreme Court quite frankly is going to be very wary of expanding Fourteenth Amendment jurisprudence to rubber-stamp an experimental new treatment, especially when minor children are involved.”

The one point both sides can agree on is that the Supreme Court’s rulings on the red-state measures will represent a crossroads for the country. One path preserves the broadly consistent floor of civil rights across state lines that Americans have known since the 1960s; the other leads to a widening divergence reminiscent of earlier periods of intense separation among the states.

Kettl believes that if the Supreme Court doesn’t constrain the red states, they almost certainly will push much further in undoing the rights revolution. “We haven’t seen what the boundary of that effort will be yet,” he told me, pointing to the ordinances some Texas localities have passed attempting to bar women from driving through them to obtain an abortion out of state.

If the Supreme Court allows the red states a largely free hand to continue devising their own system of civil rights and liberties, Chemerinsky said, it will present Americans with a “profound” question:

“Will the county accept being two different countries with regard to so many of these important things, as it did with regard to other important things such as slavery and civil rights?” he said. “Or will there be a point that people will say, ‘What divides us as a country is much greater than what unites us.’ And will we start hearing the first serious calls to rethink the United States?”