Experts: Supreme Court shifting power to state legislatures

Author: CARSON GERBER CNHI State Reporter

Jeff Harden

INDIANAPOLIS — In August, the nation watched as Indiana became the first state to enact new legislation banning nearly all abortions following the U.S. Supreme Court decision in June reversing Roe v. Wade.

In a rare move, the court took what had been for nearly 50 years a federal right to an abortion and handed the power to determine the legality of the procedure back to states.

Indiana lawmakers wasted no time using their new authority to approve the near-total abortion ban during a special session.

The same scenario played out in July 2021, when the Supreme Court upheld two controversial Arizona laws that restricted elections. That included a law that prohibited people from collecting ballots and delivering them to polling places.

The decision gave more legal leeway to other states to pass stricter voter laws.

Following the ruling, Indiana legislators in April took up a bill that would have required voters applying for an absentee ballot to provide their driver’s license or the last four digits of their Social Security number.

Another bill proposed in January would have required Indiana voters who request mail-in ballots to swear under possible penalty of perjury that they wouldn’t be able to vote in person at any time during the 28 days before Election Day.

The proposed bills, fiercely criticized by Democrats as attempts at voter suppression, later died during different stages of the legislative process.


As recent Supreme Court decisions hand more authority back to states on major policy issues, the power of Indiana legislators and state lawmakers around the nation is growing, said Gerald Wright, a political scientist and professor at Indiana University.

“It’s without a doubt happening in the areas of voting rights, and certainly with Roe, that the court is turning it over to the state’s prerogative what the federal government had taken on, in many cases, for a long time,” he said.

Gregory Shufeldt, a political science professor at the University of Indianapolis, argued the recent rulings are part of a 40-year shift of state legislatures gaining more power during an era that has drifted toward conservative governance.

That trend reached a new high when former President Donald Trump during his one-term tenure appointed three conservative justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — to the nation’s highest court.

“One of his bigger accomplishments has been appointing many people to the Supreme Court, which allows for the types of cases that have kind of exacerbated that trend of power increasingly being handed back to the states,” Shufeldt said.

The trend isn’t necessarily negative, and many voters support more state power over federal authority.

But more state control can become dangerous in states like Indiana, Shufeldt asserted, where Republicans hold a supermajority in both chambers and can pass legislation without any Democrats. That danger also holds true for states like New York, which has Democratic supermajorities in both chambers.

“When power gets returned back to the state, instead of seeing a quilt of kind of different policies, we’re seeing Republican states increasingly pursuing really clearly Republican policy directions … and Democratic states pursuing clearly Democratic policies,” he said.

That’s more worrisome than ever as one-party rule has become the norm, Shufeldt argued. Currently, 37 states, representing 74% of the nation, have one party that holds the governorship, as well as majorities in the senate and house. That’s known as a state government trifecta.

“As we live in increasingly homogeneous states, my homogeneously Republican state is going to be able to do what it wants, and the inverse is true for Democratic states,” he said. “I probably wouldn’t shy away from the word dangerous here.”

Jeff Harden, a political scientist at the University of Notre Dame, argues state legislatures have always held a lot of power, and the current trend in the Supreme Court isn’t giving them more.

Although states now make the calls on abortion and some voting-rights issues, he said, those are narrow policy decisions and don’t fundamentally give lawmakers more power.

“State legislatures, including Indiana, have always been legislating on these big issues,” Harden said.

Even when Roe v. Wade was the law of the land, Indiana still flexed its political muscles by banning abortions after 22 weeks and requiring those seeking abortions to receive an informed-consent brochure. Harden argued it’s an example of the state using its power to curtail federal policy.

“Now, they can go more directly at the issue with Roe being overturned,” he said.

Even so, Harden agrees that the Supreme Court’s recent rulings do indicate a willingness to give more decision-making and policy responsibility back to states.

“I think what you see on the current court is this idea of giving power to the local and state level, rather than issuing a blanket policy that affects everyone,” he said.


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