July | August 2017


Federalism and the U.S. Supreme Court: Past, Present and Future

by Lisa Soronen
If you are interested in federalism, much of the action has been at the U.S. Supreme Court in the last few years. This is true of the court’s current term and will likely be true of the next few terms.
The tricky thing about understanding how the Supreme Court views federalism is it is impossible to know—particularly in the big cases—what is really motivating the justices. When the majority of the court reaches an outcome favoring states’ rights over federal supremacy, is it out of respect for states’ rights or because the justices wanted a particular outcome based on ideology? For example, in the same-sex marriage cases last term, does the vote of the majority justices illustrate their lack of enthusiasm for states as laboratories of democracy or their belief that the majority of Americans were ready to accept same-sex marriage … or both or neither? While justices’ opinions offer a view into their reasoning, particular points may be overemphasized or left unsaid.
With that caveat, this article examines how federalism has fared recently in the Supreme Court, the important federalism cases currently on the court’s docket, and what federalism cases the court might take up in the next few years.

Federalism in the (Recent) Past

The Roberts Court is currently in its 10th year. The early years of the Roberts Court were not dominated by particularly significant federalism cases, but that all changed in the early part of this decade.
In the court’s October 2011 term, federalism was at issue in the two big cases. In the 2012 NFIB v. Sebelius case, the court was asked to decide whether the Affordable Care Act individual mandate and Medicaid expansion provisions were constitutional. Arizona v. United States involved a challenge to four provisions of Arizona law designed to crack down on illegal immigration.
The big cases in the court’s October 2012 term involved federalism, too. In the 2013 case United States v. Windsor, the court was asked to decide the constitutionality of the Defense of Marriage Act, or DOMA, requirement that marriage for federal purposes be defined as between a man and a woman. In Shelby County v. Holder the same year, the fate of Section 4 (and, practically speaking, Section 5) of the Voting Rights Act, requiring “covered” states to obtain federal permission before making any changes to voting laws, was in the court’s hands.
The court took a break from federalism in its big decisions in the October 2013 term but returned to federalism last term. In Obergefell v. Hodges in 2014, the court agreed to decide whether state laws prohibiting same-sex marriage were unconstitutional.
Federalism fared well in all of the cases except Obergefell v. Hodges. Notably, in NFIB v. Sebelius, while the Affordable Care Act remained mostly intact, the individual mandate was deemed to violate the Commerce Clause on the ground that Congress lacks the power to compel a person to engage in commerce. And for the first time ever, the court concluded that a federal law exceeded Spending Clause authority because it was coercive. In Arizona v. United States, while the court held that
three provisions of Arizona immigration law were preempted, it concluded the most controversial provision (“show me your papers”) wasn’t clearly preempted. And following Shelby County, Section 5 of the Voting Rights Act is currently inoperable.
United States v. Windsor, striking down DOMA, was a victory for states that permitted same-sex marriage, while Obergefell v. Hodges was a loss for states that only recognized marriage as between a man and a woman.

Federalism at Present

Five of the six significant cases on the court’s docket this term have federalism implications.
The U.S. Constitution Equal Protection Clause “one-person, one-vote” principle requires voting districts to have roughly the same population so that votes in each district count equally. In Evenwel v. Abbott, the court will decide what population is relevant—the total population, including non-citizens, or the voting population—and who gets to decide—the states or the U.S. Supreme Court.
Texas, like all other states, reapportioned its state senate districts following the 2010 census based on total population alone. Challengers claim that their votes are worth less than other voters because they live in districts that substantially deviate from the “ideal” in terms of number of voters or potential voters, which violates “one-person, one-vote.”
The district court ruled in favor of Texas, reasoning that the Supreme Court has never held any particular metric chosen by a state legislature to be unconstitutional.
In Friedrichs v. California Teachers Association, the court may strike down more than 20 state “fair share” laws.
In the 1977 case Abood v. Detroit Board of Education, the court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective bargaining, contract administration and grievance adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions.
Public-sector employees who don’t join the union may opt out of paying “nonchargeable” union expenditures—including expenditures for political or ideological purposes. The court agreed to decide, assuming it doesn’t overrule Abood, whether requiring non-members to opt out of nonchargeable expenditures—rather than opt in—violates the First Amendment.
The issue in Whole Women’s Health v. Cole is whether Texas’ admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions and are reasonably related to advancing women’s health. Two dozen states have adopted similar laws.
Texas claims, and the Fifth Circuit agreed, that women’s health is advanced if doctors performing abortions have admitting privileges at a nearby hospital and if abortion clinics must comply with standards set for ambulatory surgical centers. Whole Women’s Health argues that the Fifth Circuit erred in refusing to consider “whether and to what extent” Texas law actually serves its purported interest in achieving safer abortions.
Whole Women’s Health also argues that these requirements create an undue burden on those seeking abortions. Fewer than 10 of Texas’ more than 40 abortion clinics will remain open, those that do will be inaccessible to many and may be unable to keep up with demand for abortions. The Fifth Circuit found no undue burden even though 17 percent of women of reproductive age would face travel distances of 150 miles or more to receive abortions.
For the second time, the court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.
Per Texas’s Top Ten Percent Plan, the top 10 percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index,” he or she will be evaluated through a holistic review where race is one of a number of factors.
The court has held that the use of race in college admissions is constitutional if it is used to further the compelling government interest of diversity and is narrowly tailored.
In the first hearing of the case, the court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.
When the Fifth Circuit reviewed UT Austin’s admissions policy, it again concluded that it
is narrowly tailored; the court determined that the Top Ten Percent Plan works well at increasing minority student enrollment because Texas schools are so segregated.
But a number of well-qualified students are excluded—specifically minority students who performed well at majority-white schools but aren’t in the top 10 percent of their class. If race wasn’t considered during holistic review almost every student admitted would be white because of the test score gap between white and minority students.
And as a result of holistic review, a much higher percentage of white students are admitted, but generally between 25 and 30 percent of the overall number of black and Hispanic students are admitted through holistic review.
In United States v. Texas the court has agreed to decide whether President Obama’s deferred action immigration program violates federal law or is unconstitutional. While this isn’t a federalism case per se, the United States argues that the states lack “standing” to challenge the Deferred Action for Parents of American, or DAPA, program.
The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.
The court’s ruling on standing in this case could affect states’ ability to challenge other federal laws that impact them.

Federalism in the Future

It is impossible to know what cases the Supreme Court will take in the future involving federalism—or any other topic. But it is probably fair to predict that a few of the following issues will find their way onto the court’s docket sooner rather than later.
This term the court refused to review a case holding that a city could ban assault weapons and large capacity magazines. It is just a matter of time until the court rules again on gun control. It may first want to decide whether the right to possess a gun extends outside the home before deciding which types of guns are protected by the Second Amendment.
Last term, in two separate concurring opinions, Justice Kennedy expressed interest in hearing a case challenging the constitutionality of solitary confinement and a case reexamining Quill Corp. v. North Dakota from 1992, holding that states cannot require retailers with no in-state physical presence to collect use tax.
Working their way through the federal courts are cases challenging the use of race in admissions at Harvard and the University of North Carolina at Chapel Hill. Challengers are arguing that it is unconstitutional to use race in college admissions at all.
Finally, at some point in the near future the Supreme Court is likely to agree to hear a challenge to a state voter ID law.


Three things may be said definitively about the Roberts Court. It is not afraid of taking on significant, controversial issues, and many of those issues have implications for federalism. But only the justices know how much considerations of federalism really make a difference in their decisions.
About the Author
Lisa Soronen is the executive director of the State and Local Legal Center. Prior to joining the SLLC, she worked for the National School Boards Association, the Wisconsin Association of School Boards and clerked for the Wisconsin Court of Appeals.