The Supreme Court and the States: Trend Defending State Authority Emerges this Term

The Supreme Court and the States: Trend Defending State Authority Emerges this Term

Tuesday, July 14, 2009


PSN Event at NCSL Legislative Summit in Philadelphia

On Monday, July 20th -- the day before the National Conference of State Legislatures' Legislative Summit officially begins -- Progressive States Network will be hosting an afternoon event and reception for progressive legislators and organization allies.

The event will take place on the 10th floor of the Hilton Garden Inn Philadelphia Center City, located adjacent to the Pennsylvania Convention Center, at 1100 Arch Street.  The afternoon will consist of three timely sessions to discuss transparency and equity in the Federal Recovery Plan and opportunities for state-federal collaboration.

The afternoon session will be followed by a cocktail reception sponsored by PSN and allies, during which legislators can network with each other and with advocates whose priorities are of interest to them. 

To learn more and RSVP, visit  There is no cost to attend, but space is limited.  For more information, contact Marisol Thomer, PSN Outreach Coordinator, at 212-680-3116 x108 or

If you cannot join us on Monday, we welcome you to visit us Tuesday - Thursday at booth #406 in the exhibit hall.



The Supreme Court and the States: Trend Defending State Authority Emerges this Term

Whether out of circumstance or an emerging trend, where state authority was at issue, this term the U.S. Supreme Court overwhelmingly deferred to state decisionmakers-- a significant reveral from last year.  There were major exceptions -- the Ricci decision preempting the affirmative action decision by the City of New Haven being the most prominent -- but the results in favor of state authority overall were relatively broadbased.   In the context of President Obama's recent endorsement of less preemption of state laws by federal regulators,  we may be seeing a more general reversal of trends that had increasingly undermined state authority.  Still, any trend on this Court is provisional since it continued its politicization and divisions, ruling on 79 cases where 23 of which, according to SCOTUSblog, were split 5-4. 

Overall Resources

Upholding State Regulation of the Economy

In major decisions, the Supreme Court made dramatic decisions affirming state authority to rein in corporate malfeasance even where federal regulations had been enacted in the same policy area. 

Expanding State Regulation of Banks:  A blockbuster decision was Cuomo v. The Clearing House Ass’n, L.L.C. which ruled that federal banking regulations did not preempt states from enforcing their own fair-lending laws.  The ability of New York's attorney general to bring enforcement actions over banks' residential real-estate lending practices was upheld, a reversal of past court trends that had favored federal regulations at the expense of state regulations.  

The decision in many ways come five years too late, since as we wrote back in 2007, Bush administration rules and lower court decisions blocking state fair lending rules allowed the subprime debacle to explode.    But as new federal laws are being written to regulate the financial industry, the decision will help reinforce proposals to explicitly make federally chartered institutions subject to state consumer and civil rights laws and allow states to enforce some federal consumer protection laws.

Upholding State Regulations Against Deceptive Marketing Practices:  A major goal of the corporate legal right wing has been to gut state tort laws in the name of federal preemption-- and the Supreme Court dealt that a double loss this term in the Wyeth and Altria decisions.

  • In Wyeth v. Levine, the Court held 6-3 that federal drug labelling rules did not preempt state tort laws holding companies responsible for inadequate warnings over the dangers or procedures for safely using prescription drugs.  Justice Thomas, notably, took the broadest position that he would no longer support claims against state laws based on "implied" preemption, instead arguing the burden should be on Congress to make clear its intent to preempt state law.
  • Similarly, in Altria Group v. Good, the Court held that state laws challenging the marketing of "light" cigarettes were not preempted by either the Federal Cigarette Labeling and Advertising Act or the regulatory actions of the Federal Trade Commission.

In two key labor decisions--  one which was against the interests of unions and one in support of them  -- the common denominator was that state governments were given greater discretion over union fees paid by employees:

  • In Locke v. Karass, the Court ruled that states may enter into collective bargaining agreements that require public employees to pay agency fees that finance litigation by a parent union, as long as such litigation is related to collective bargaining rather than political issues.
  • In Ysura v. Pocatello Education Association, the Court found states also have the discretion to ban payroll deductions for labor union political activities, even when the state ban applies to the deductions from the paychecks of local government workers.

Protecting Integrity of Jury Decisions:  As we highlighted a few weeks ago, the Caperton v Massey  decision protected state jury decisions regulating the behavior of businesses from local judges corrupted by corporate campaign contributions.  In that case, a $50 million jury award against a West Virginia coal company was overturned by the state's Supreme Court, the deciding vote by a judge whose campaign had received $3 million by the coal company.  The U.S. Supreme Court in turn ruled that the judge should have recused himself due to such clear conflict of interest.

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Civil Rights and the States

Where it came to the issue of race and civil rights, on the other hand, the conservative majority that controlled most decisions tended to uphold state or federal authority based on which was more hostile to rectifying racial inequality.  

Judicial Activism Against Local Decisions in RicciIt is ironic that the most famous case of the session, Ricci v. DeStefano was also the most dramatic example of the conservative majority on the Court disregarding local government authority.   In this case, a local decision that a test for the promotion of firefighters was racially biased -- and thus should not be used -- was deemed illegal reverse discrimination under federal civil rights laws.  Even more problematically, the Court majority indicated an inclination to void a much wider range of employer actions seeking integrated workplaces as illegal under the 14th Amendment.  "The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, president and director-counsel of the NAACP Legal Defense Fund.

Weakening the Federal Voting Rights Act:  Conversely, as we detailed in March, the Court in its 5-4 Bartlett decision narrowed the scope of the Voting Rights Act by ruling that when minority voters make up less than 50 percent of the voting age population, states can ignore provisions of the law meant to keep minority votes from being diluted during redistricting.

And in Northwest Austin Municipal District No. 1 v. Holder, the Court created new exceptions to the Voting Rights Act that allow local government jurisdictions to "bail out" of a provision in the Voting Rights Act that requires federal pre-clearance for changes in election procedures in a number of states.  Even more worrisome for civil rights, conservatives on the court indicated a willingness in the future to strike down larger swathes of the federal Voting Rights Act.

Language Access in Schools:  In  Horne v. Flores, the Court expanded states' ability to escape federal laws requiring them to take “appropriate action” to help English language learners overcome language obstacles.  Back in 2000, a a federal district judge found that Arizona's minimal spending on instruction for English language learners violated the federal Equal Educational Opportunity Act.  In a decision written by Justice Samuel A. Alito Jr., the Court majority limited lower court decisions requiring more spending to assure equality for non-native speakers in schools.

Rights of Special Needs Students:  On the other hand, in its Forest Grove School District v. T.A decision, school districts are now required under the  Individuals with Disabilities Education Act to reimburse parents for the hefty costs of sending a child with special needs to private schools for services that were unavailable in public school, even where the child had never even attended public school.

Access to Public Space by Religious Minorities Limited:  In Pleasant Grove City v. Summun, the Court ruled that a municipality was not required to allow other religious groups to erect their own religious monuments just because a Ten Commandments monument existed in a park.  However, after the Supreme Court decision came down, the municipality made further litigation moot by moving the Ten Commandments monument out of the park.

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Criminal Justice Decisions Mixed for Local Authority

As is usual, the criminal justice docket was a mixed bag, weakening individual rights for defendants in some cases, while giving law enforcement a more free hand in others.

Cases Strengthening Police Powers:  In one of its highest profile criminal justice cases of the term, the Court overruled a longstanding precedent to make it easier for police to obtain a waiver of counsel from suspects in Montejo v. LouisianaThe Court held that the right to counsel could be waived “so long as relinquishment of the right is voluntary, knowing and intelligent,” which could be established by the state’s rote recitation of the defendant’s Miranda rights, and the defendant’s un-counseled and voluntary waiver of those rights.  Other cases strengthened police and prosecutor powers included:

  • In Herring the Court weakened protections against illegal searches and seizures by holding that it was not necessary to exclude evidence that had been obtained pursuant to a warrant based on erroneous evidence that was negligently supplied by a police clerk.  The opinion suggests a broader trend toward allowing the use of evidence obtained through police negligence.
  • In its Osborne decision, the court rejected a claim that those convicted of crimes had a due process right to DNA testing to prove their innocence.  Although Alaska is one of the few states that has no DNA testing law, the court reasoned that since 46 states already have such a law, it should not ''short-circuit'' the legislative process by mandating it for all jurisdictions.
  • In Van de Kamp v. Goldstein, the Court strengthened the immunity from prosecution that prosecutors enjoy.
  • Arizona v. Johnson expanded the stop and frisk powers of police.
  • Oregon v. Ice strengthened judicial power to impose consecutive sentences based on facts that were not found by the jury, but only by the judge.

Cases Favoring Defendants Against Police and Prosecutors:  On the other hand, defendants won a number of victories against state police powers.  These included:

  • In Melendez-Diaz, the Court ruled that a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence, meaning that defendant has the right under the Confrontation Clause to require forensics staff to testify and be cross-examined at all trials.
  • Arizona v. Gant restricted the power of the police to search a vehicle seized in the course of an arrest.
  • And in Safford Unified School District #1 v. Redding, the Court held that school authorities violated the Fourth Amendment right by applying a strip search to a 13-year old girl who was suspected of having ibuprofen.

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Future terms will show how durable this term's trend of the Court deferring to state authority will be, but the fact that conservative Justices Thomas and Scalia each joined one or more of the decisions giving states greater authority to regulate corporations means there may be a longer-lasting judicial coalition emerging to defend state authority adding an extra set of regulatory eyes on corporate malfeasance.  No doubt, the spectacular federal regulatory breakdown around the financial crisis has dimmed the corporate argument that a single federal regulatory scheme is sufficient to protect consumers. On the other hand, the Ricci decision shows the conservative majority's ongoing commitment to using federal power to overturn local affirmative action actions is unabated even as those same conservative Justices seem determined to weaken federal commitments to racial equality.

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The Stateside Dispatch is written and edited by:

Nathan Newman, Executive Director
Caroline Fan, Immigration and Workers' Rights Policy Specialist
Julie Schwartz, Broadband and Economic Development Policy Specialist
Christian Smith-Socaris, Election Reform Policy Specialist
Adam Thompson, Health Care Policy Specialist
Julie Bero, Executive Administrator and Outreach Associate
Austin Guest, Communications Specialist
Mike Maiorini, Online Technology Manager
Marisol Thomer, Outreach Coordinator


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