Discouraged by the Supreme Court? Take the next fight to the states, says legal analyst

The Supreme Court’s 2021-22 term is over, and it’s been a busy one. The court issued decisions overturning Roe v. Wade; ruling police officers cannot be held liable if they do not give Miranda warnings; expanding gun rights; and limiting the Environmental Protection Agency’s power. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined GBH’s Morning Edition hosts Jeremy Siegel and Paris Alston to unpack these rulings and more. This transcript has been edited for clarity and length.

Jeremy Siegel: Last week marked the end of perhaps the most tumultuous term in the history of the United States Supreme Court. The court issued earth-shattering opinions in cases involving gun rights, the environment, the separation between church and state and, of course, abortion.

Paris Alston: The court's rulings in these cases have left some feeling despondent about the partisanship exhibited by the court, and about the future of the country. Daniel, we've heard this term of the Supreme Court described again and again as monumental or controversial or earth-shattering. I'm curious, as someone who's looking at legal history, do you agree with this characterization of the court's term as one of the most monumental and controversial in its history?

Daniel Medwed: Yes, I'm hard-pressed to think of a term where the court has issued so many consequential opinions and at the same time exhibited such a clear fracture of the justices in those opinions along ideological lines. Of course, conservative and liberal justices seldom agree, that's how it often works out. But in the past, they could find common ground. It wasn't unusual to find, say, Justices Scalia and Ginsburg on the same side of a different opinion. Those days appear to be long gone. They're fewer and further between.

Alston: There are some people who are celebrating these rulings, be they gun and anti-abortion advocates, people who are in favor of limiting the EPA's authority to curb emissions, for instance. So I'm curious about your response to those folks. And for those who are feeling discouraged about this rising partisanship on the court and the future of our country, what are some steps that they can take, be it federal legislation, reforming the Supreme Court, or something else?

Medwed: I think that those are really important points. For people who are happy with how things have turned out this term, I think the future is quite bright for them, given the youth of the conservative justices on the Supreme Court and the projected trajectory of future cases. However, for people who are discouraged about what they perceive to be a partisan power grab by the Supreme Court, I think a multi-pronged approach might be the way to go. Targeting federal legislation is beneficial because it's comprehensive, it's national. You could have Congress try to pass a gun regulation; or preserve a right to abortion at the federal level; to ensure that there are greater environmental protections; to maybe change the composition of the Supreme Court in terms of increasing the number of justices; or at least impose term limits on how long they serve.

But frankly, as long as the filibuster is in place and as long as Congress is so evenly divided between Democrats and Republicans, I don't think it's going to happen. It's a little bit like bringing your bat up to the plate at a baseball game and swinging for the fences. If you connect, great. But there's a really good chance you're going to strike out. So for that reason, I think that activists should focus on hitting singles, on just getting on base. And that means targeting state-level reforms, going for very granular, singular state-level fights.

Siegel: What exactly do you mean? How can state-level reforms counter the Supreme Court's rulings?

Medwed: The idea is that the federal Constitution, and the Supreme Court rulings, are a floor under which states may not go. You can't confer fewer rights to the citizens of your state than the Supreme Court or Congress demand. That's why Roe v. Wade was so important, because it ensured that states couldn't completely abolish abortion. You could not confer fewer rights to people than Roe v. Wade demanded.

However, there is no ceiling. You can always give greater rights to citizens, more protection than the Supreme Court demands. That's one reason why a lot of people in Massachusetts are fairly optimistic about preserving the right to abortion here, because of our state constitution, our state legislature, and the orientation of our state supreme judicial court. I think a lot of people might be surprised to learn that a lot of states, including some deep red states, have similarly progressive state constitutions and state supreme courts.

Alston: Tell us a little more about that.

Medwed: The one that comes to mind is Kansas. Section 1 of the Bill of Rights that the Kansas Constitution protects certain natural, inalienable rights of Kansans. And in 2019, the Kansas Supreme Court, in an opinion called Hodes and Nauser v. Schmidt, ruled that means that Kansans have a right to personal autonomy, a right to bodily integrity, and that encompasses the right of women to choose whether to have an abortion. In other words, in the 6 to 1 decision, the Kansas Supreme Court created a state constitutional right to abortion in Kansas. Now, conservatives at the time in the state responded vociferously. They were irate about this, so they drafted a proposed constitutional amendment — it's very vague, the wording is very confusing — that essentially would get rid of the right to abortion in Kansas. That proposed constitutional amendment is on the ballot. In four weeks, on August 2, Kansans will debate whether to change the Kansas Supreme Court rule and get rid of abortion in that state.

Siegel: How significant would you say this is? Obviously, this is a big decision involving abortion rights. But also Kansas is a small state. It's in the middle of the country. How significant is this in the legal landscape when you're looking at it?

Medwed: I think it's incredibly significant for two reasons. First, I've talked to some folks on the ground there and this is winnable. It's a lot easier to play defense, to protect a pre-existing rule or right, than it is to go on offense and create a new one. Second, let's consider Kansas's geographic location. It's in close proximity to a number of states — Texas, Oklahoma, Missouri and Nebraska — that have trigger bans that are in the process of getting rid of abortion in the immediate aftermath of the Dobbs decision. Wichita is just five hours by car from Dallas, two and a half hours from Tulsa. Kansas City is readily accessible from Missouri and Omaha, Nebraska. So for those reasons, there's a chance that Kansas could be an oasis of reproductive justice in what otherwise might become a desert.

Alston: And what other states might people want to look at?

Medwed: The other one I'm thinking about right now is Kentucky. There's a lot of litigation involving abortion in Kentucky right now. And in November, there's a similar constitutional amendment, similar to the Kansas one, that's on the ballot in that state. I don't know as much about what's going on in Kentucky, but I suspect as the weather cools, that battle is going to heat up and we can revisit it and talk about it as things get closer. But that's another state to watch out for.