One of the early lessons we learn in life is that things seek balance. When a parent pushes their child on a swing set, the child climbs high into the air but giggles as they swing back. When a high school student is studying algebra, they learn that each side of their equation must be balanced. Historically, when one iteration of the Supreme Court has empowered one tier of the federal structure (either states or the federal government), a later Court often engages in what this Note terms federalism rebalancing: swinging power back in the opposite direction. This Note examines the concept of a federalism rebalance as an observable correction to the Court’s jurisprudence. A Court that allocates significant power to either the states or the federal government often later seeks to rein in what may have been an overly broad approach.1
The idea of federalism rebalancing is not just theoretical. Rather, it is a historical pattern observable in several periods of the Supreme Court’s history. Any given Supreme Court decision, by defining the bounds of individual rights or the limits of governmental authority, could have some impact on the balance of power between state and federal governments.2 Even decisions that interpret the bounds of only one of the federal branches, perhaps in a separation-of-powers context, can have an impact on the federal-state balance by expanding or contracting at least one source of federal power.3 But this Note focuses on decisions that interpret constitutional limits on power and decisions that interpret statutes or administrative law in a way that has a strong impact on the federal-state balance. To illustrate how this trend has operated in the past, this Note samples cases within major Courts that have historically been viewed as (1) major and (2) impactful to the federal-state balance.4
While most Courts have followed the trend of federalism rebalancing, some have not. The Warren Court was one notable exception.5 The Roberts Court, it turns out, is another.6 Prioritizing federalism as a distinct jurisprudential value, the Roberts Court has defied the historical trend of federalism rebalancing by empowering states without a material rebalance of empowering the federal government. The Roberts Court’s pro-state decisions have often altered the status quo and restructured existing federal-state relationships. Although the Roberts Court certainly has issued some pro-federal decisions, those decisions have typically been minimalist and merely upheld the status quo. As only a few previous Courts have, the Roberts Court has deliberately rejected the historical trend of federalism rebalancing. This Note explores this deliberate rejection and considers the future impacts of the Roberts Court’s legacy. In doing so, it unveils that the Roberts Court’s treatment of federalism deviates from the majority of the Supreme Court’s historical practice. This deviation has already impacted the federal-state balance and likely will continue to do so as this legacy echoes in future Courts.
Part I of this Note illustrates the historical trend of federalism rebalancing by examining several previous Courts,7 illustrating this common pattern of recalibrating a Court’s federalism jurisprudence. Part II analyzes the Roberts Court as a pro-state Court and considers possible reasons why it has so far issued mostly pro-state decisions and rejected federalism rebalancing. Finally, Part III considers likely implications of the Roberts Court’s rejection of federalism rebalancing.
I. Past Federalism Rebalancing
This Part outlines how federalism rebalancing has occurred within major Courts. Because so many periods of the Court evinced an initial push toward either federal or state power followed by a course reversal, a Court that doesn’t engage in such a practice should give us pause and prompt further study.
A. Marshall Court (1801–1835)
The Marshall Court faced a country suspicious of pro-federal, Federalist-dominated courts.8 Even so, the Marshall Court still significantly expanded federal judicial power.9 To offset these judicial expansions, the Marshall Court afforded other federal branches similar growth, often by declining to limit congressional or executive power.10 For example, in Marbury v. Madison,11 the Marshall Court asserted the power of judicial review and the power to issue mandamus against high-level executive officials; but, in the same decision, it did not use this power.12 Later, the Court chose not to limit congressional power, by refusing to strike down portions of the Judiciary Act of 1802.13 The Marshall Court spent much of its time aggrandizing the federal government, as the Court was predominantly concerned with state governments swallowing their federal counterpart.14 But the Marshall Court also conducted some federalism rebalancing by qualifying federal power and by acknowledging and preserving state powers. In Gibbons v. Ogden,15 for example, the Marshall Court gave a broad reading to the “general”16 power of Congress to regulate interstate commerce while acknowledging state power to pass “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State.”17 In the same vein, Barron v. Mayor of Baltimore18 held that the Bill of Rights did not apply to the states, recognizing some limits on federal power.19 While perhaps not sufficient to show a trend of federalism rebalancing by the Marshall Court alone, Gibbons and Barron began a trend of rebalancing federal empowerment with state empowerment that later Courts furthered.20
B. Taney Court (1836–1864)
The Taney Court, unlike the Marshall Court, operated in a political environment that emphasized states’ rights and limited congressional power.21 President Jackson opposed expanding federal legislative power,22 famously battling the National Bank, and Chief Justice Taney appeared to share this intuition, at least when it came to the Commerce Clause.23 Following the legacy of the Marshall Court, which was to empower the federal government checked by a slight rebalance toward states, the Taney Court empowered the federal government in minor ways while also preserving state power, notably in the realm of commerce.
The Taney Court’s pro-federal decisions often empowered the federal judiciary while checking congressional power. In that sense, even the Court’s pro–federal judiciary holdings came at equal expense to the state governments as well as other federal branches. For example, Kendall v. United States ex rel. Stokes24 held that D.C. Circuit Courts could issue writs of mandamus to executive branch officials.25 Although the writs were to executive branch officials, this arguably infringed on the power of Congress because in McClung v. Silliman,26 the Court had suggested that Congress must grant the mandamus power specifically.27 Similarly, in Swift v. Tyson,28 the Taney Court increased the discretion of the federal judiciary by recognizing general common law as a source of law for cases in diversity.29 Swift therefore simultaneously skirted Congress’s authority to authorize general common law as a source of law in diversity while shifting power from the states (who otherwise would have controlled common law in diversity cases).30
At the same time as it expanded federal judicial power, the Taney Court limited congressional power and preserved certain powers of the states. In Cooley v. Board of Wardens,31 the Taney Court preserved state power to regulate certain commercial activities even though Congress also had regulatory power over those activities.32 And, most infamously, the Taney Court limited Congress’s power in Dred Scott v. Sandford,33 which held that Congress did not have the power to free slaves within federal territories.34
The Taney Court thus engaged in federalism rebalancing, infringing on Congress’s power to create federal law while also limiting state power to have legal influence in diversity cases. Subsequent Courts engaged in broader and more explicit rebalancing.
C. Hughes Court (1930–1941)
The Hughes Court was initially marked by a feud between President Franklin Delano Roosevelt and the Justices who refused to uphold the constitutionality of many New Deal programs35 and state minimum wage laws.36 In response, President Roosevelt attempted to pack the Court.37 This was followed by a “switch in time to save nine” in 1937, in which Justice Owen Roberts “switched” from striking down liberal federal and state legislation.38 Later, Justice Roberts also voted with the majority to uphold a state minimum wage law,39 the Wagner Act,40 and the Social Security Act.41
Although some might take this change to be a switch from striking down government power at large to upholding it, a more nuanced examination of the Court’s holdings pre- and post-switch indicates that there is a distinctive rebalance from anti-federal holdings to pro-federal holdings. The Court did strike down state laws before the switch, but it narrowly focused its ire on state minimum wage laws. The Hughes Court’s decisions impacting federal power were broader in subject matter and greater in impact. Thus, the switch was still a significant boon to the federal government in the game of federalism.
The Hughes Court therefore balanced its state-strengthening holdings42 with federal-strengthening holdings,43 providing a clear example of historical federalism rebalancing.
D. Warren Court (1953–1969)
The Warren Court is known for its progressive legacy, particularly in the realm of civil rights.44 While some contemporaneous legal minds praised this development,45 others described the Court as outcome-focused and “too much concerned with grand abstractions of liberty at the expense of the orderly growth and the continuity of the law.”46 Either way, the Warren Court instigated dramatic legal change. If any historical Court proves to be an exception to the theory that Courts tend to rebalance federalism swings, it would be the Warren Court.
And indeed, the Warren Court appears to be just such an example. The Warren Court issued many federal-strengthening precedents47 and state-weakening precedents.48 All of these pro-federal precedents were issued without significant state-strengthening cases to balance them.49
In this sense, the Roberts Court resembles the Warren Court because it, too, has rejected federalism rebalancing, albeit by swinging in the opposite, antifederal, direction. Both Courts certainly have some decisions that could be seen as a “rebalance” of sorts, but their decisions taken as a whole profoundly swing on one side of the balance. As Part II discusses, these Courts share a disregard for the need for occasional federalism rebalancing, differing only in why they reject rebalancing.
E. Rehnquist Court (1986–2005)
William Rehnquist’s appointment as Chief Justice was expected to be a harbinger of “a significant conservative shift by the Court.”50 And on the whole, this expectation proved correct. Consistent with its conservative character, the Rehnquist Court issued mostly state-strengthening precedents, kicking off what scholars would later term the Rehnquist Court’s “Federalism Revolution.”51 State-strengthening precedents from this Court are abundant.52 And federal-weakening precedents are likewise numerous.53
Unlike the Roberts Court, however, the Rehnquist Court balanced this pro-state swing with a series of state-weakening precedents that altered the status quo by expanding individual rights recognized under the Fourteenth Amendment.54 The Rehnquist Court thus continued the pattern of past Courts accompanying major federalism swings with a rebalance in the opposite direction.
* * *
The pattern of federalism rebalancing in historical Courts is strong, but not a law of nature. The Warren Court broke this pattern.55 And as discussed below, the Roberts Court has so far rejected this historical trend.
II. The Roberts Court and Intentional Imbalance
Coming on the heels of the Rehnquist Court and its “Federalism Revolution,”56 the Roberts Court faced the question of whether it would continue or end this revolution. Now, almost two decades into the Roberts Court, the Court has not only continued the revolution but also dug in for the war. The Roberts Court has exhibited a unique commitment to federalism in its frequency of state-strengthening decisions, the impact of those decisions, and the pro-state doctrinal commitments these decisions exhibit. It is therefore likely that the Roberts Court will, like the Warren Court, continue to reject federalism rebalancing — albeit for markedly different reasons.
To some extent, the strength of the Roberts Court’s federalism makes sense, given the judicial conservatism that characterizes the current bench.57 The Roberts Court has repeatedly recognized that shifting federal power to the states allows “state experimentation” through which to test various solutions within a diverse society.58 But as some scholars have pointed out,59 Roberts Court Justices frequently vote against the political ideologies of the Presidents who appointed them and more in line with something else. This pattern is possibly a commitment to classical liberalism.60 But more likely, it is a commitment to shifting power from the federal government to the states. Taking these observations together, it increasingly seems that the Roberts Court may be defined in history by its unique commitment to the jurisprudential value of federalism.
All this raises the question of whether the Roberts Court will continue to break this trend of federalism rebalancing. Another largely conservative bench, the Rehnquist Court, empowered states in many of its decisions61 but later rebalanced.62 Other Courts, such as the Hughes Court, also exhibited this pattern.63 But, as further discussed in this Part, the Roberts Court increasingly seems to be an exception to this trend.
A. Major Federalism Cases of the Roberts Court
Since the beginning of the Roberts Court, the Court has issued mostly state-strengthening decisions. These decisions are notable not only in the pro-state outcome that they reach but also in the way they reach this outcome, which is often by altering the status quo. For example, a Supreme Court decision that does not alter the status quo might strengthen the federal government by applying settled precedent, acknowledging an established right, or operating within an existing federal-state relationship. A status quo–altering decision, on the other hand, would overturn prior precedent, recognize a new right, or restructure an existing federal-state relationship. While the Roberts Court has issued decisions that could appear to fall on both sides of the pro-state and pro-federal spectrum, its pro-state decisions often alter the status quo, while its pro-federal decisions do not.
A major pro-state decision from the Roberts Court is Dobbs v. Jackson Women’s Health Organization,64 which overturned Roe v. Wade65 and held that the Constitution does not confer the right to choose to have an abortion.66 In doing so, Dobbs was a seismic shift not only in abortion jurisprudence but also in the expansion of state power.67
Some might question whether Dobbs is as strongly pro-state as this Note suggests, because Dobbs did not prohibit Congress from regulating abortion (or even from doing legislatively what Roe had done judicially).68 But Dobbs did, even if temporarily, shift power to decide how to regulate abortions to the states.69 Additionally, some might point out that the Roberts Court has not been consistently pro-state in its abortion jurisprudence. In Gonzales v. Carhart,70 for example, the Roberts Court upheld a federal abortion restriction.71 However, Gonzales was a case decided only two years after Chief Justice Roberts became Chief Justice, and it was decided when the Court had a very different composition.72 Therefore, the 2022 Dobbs decision presented a more helpful predictor of where the Roberts Court might be headed in terms of its likelihood of engaging in a federalism rebalance in the near future.
Another major state-strengthening decision was Shelby County v. Holder,73 holding the Voting Rights Act of 1965’s74 preclearance formula unconstitutional and removing the requirement that covered states obtain preclearance when adjusting voting laws.75 Like Dobbs, Shelby County was a departure from the status quo that deliberately expanded state power.76
Similarly, Mallory v. Norfolk Southern Railway Co.77 departed from what the dissent called “75 years” of precedent holding that states could not assert general jurisdiction over companies merely because they did business in the state.78 In holding that states could require such companies to consent to general jurisdiction in order to do business in the state, Mallory was a dramatic expansion of state power.79
Other major state-strengthening precedents include National Pork Producers Council v. Ross,80 upholding, despite the dormant commerce
clause, the constitutionality of a California law (Proposition Twelve)81 that required certain standards for pork sold in the state of California;82 Biden v. Nebraska,83 holding that the Secretary of Education did not have the authority under the HEROES Act84 to forgive federal student loans and that a state had standing to challenge the Secretary’s policy;85 Loper Bright Enterprises v. Raimondo,86 overturning the decades-old Chevron doctrine in holding that courts shall not defer to an agency’s interpretation of law simply because the statute is ambiguous;87 West Virginia v. Environmental Protection Agency,88 holding that under the “major questions doctrine,”89 the EPA could not enact a broad new rule without clear congressional authorization;90 and Franchise Tax Board of California v. Hyatt,91 overruling a previous case92 in holding that states have sovereign immunity against private suits brought in courts of other states.93 There are also a number of more minor state-strengthening decisions.94
B. The Minimal Significance of the Roberts Court’s Pro-Federal Decisions
Some might counter that the Roberts Court is not as pro-state as it first seems. For example, some of the more minor pro-state decisions from the Roberts Court are not explicitly about federal structure, but instead interpret statutes or engage with presumptions about congressional delegation. Rapanos v. United States,95 for example, merely interpreted the bounds of the Clean Water Act.96 Arlington Central School District Board of Education v. Murphy97 simply interpreted the limits of the Individuals with Disabilities Education Act98 (IDEA).99 The “major questions” cases100 merely applied and strengthened a presumption about how Congress delegates large areas of authority to agencies.101
However, these decisions are still meaningful as pro-state precedents because of their impact on the federal-state balance. By narrowly construing statutory language under the Clean Water Act and the IDEA, Rapanos and Murphy represent subtle checks on federal power.102 And in addition to holding the executive branch to greater scrutiny when regulating certain topics, the major questions cases impose something like a clear statement rule on Congress for larger delegations of its power to agencies, further bounding federal power both in those cases and in the future.103
Additionally, some might argue that because the Roberts Court has issued several pro-federal decisions, it has in fact engaged in federalism rebalancing. However, these decisions reflect a jurisprudence of authorizing minimal federal intervention and upholding the status quo. For example, in Trump v. Hawaii,104 the Roberts Court interpreted portions of the Immigration and Nationality Act,105 holding that the President of the United States has broad discretion to temporarily prohibit the entry of foreign nationals into the United States.106 This decision was also consistent with the Roberts Court’s holding in another pro-federal immigration case, Arizona v. United States,107 which held that a state law regulating immigration was preempted by federal immigration laws.108 Considering Congress’s well-established authority to regulate immigration under Article I, section 8, clause 4, which grants Congress the power to establish a “uniform Rule of Naturalization,”109 these pro-federal decisions more reflect an unwillingness to change the status quo than a deliberate expansion of federal authority.
Other seemingly pro-federal decisions were similar in passively upholding the status quo. In Allen v. Milligan,110 the Roberts Court upheld a challenge under section 2 of the Voting Rights Act to a state’s districting plan by applying a three-factor test created by precedent.111 And while states may dispute whether Obergefell v. Hodges112 was right in expanding federal power to hold that states may not prohibit same-sex marriage,113 the Roberts Court still at least framed its holding as interpreting precedent.114 Contrasting with Obergefell and Allen, which preserved the status quo at least in terms of jurisprudence, cases like Dobbs and Hyatt altered the status quo of state power by overturning precedent.115
In the same way, in Trump v. United States,116 the Roberts Court drew from Nixon v. Fitzgerald117 and Clinton v. Jones118 to hold that the President is absolutely immune for acts within the President’s exclusive constitutional authority, and is presumptively immune for acts within the outer perimeter of that authority.119 This case reflected new law only because it involved “the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.”120 In Trump v. Anderson121 as well, the Roberts Court preserved the historical status quo, holding that Congress has exclusive power to enforce section 3 of the Fourteenth Amendment and disqualify federal candidates from holding office because it had this power historically.122
Potentially ambiguous as to its federalism import, National Federation of Independent Business v. Sebelius123 (NFIB) held that Congress had the taxing power to mandate the purchase of health insurance124 but also that the Commerce Clause did not confer on Congress the ability to compel commerce that had been nonexistent.125 A majority of the Court further interpreted the Necessary and Proper Clause narrowly, putting force behind the requirement that a necessary law also be “proper.”126 Chief Justice Roberts additionally joined six other Justices in reasoning that the Affordable Care Act’s127 mandate that states expand their Medicaid programs was overly “coercive”128 and thus fell outside the scope of Congress’s spending power under the General Welfare Clause.129 Although NFIB ultimately upheld the health insurance mandate, it coupled this holding with severe limits on federal legislative authority by enforcing limits under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. Therefore, although at first glance NFIB appears ambiguous as to its federalism impact, the novelty and breadth of its federal-weakening holdings make it a solidly pro-state decision.
Some might object that the Roberts Court’s current practice does not prove that it will never engage in federalism rebalancing. However, rebalancing seems unlikely for the Roberts Court because of the Court’s apparent motivation for rejecting rebalancing thus far. Traditionally, Justices who were appointed by Republican Presidents have been most likely to exhibit commitments to federalist jurisprudence.130 But the Roberts Court is unique even in that aspect, with Democratic appointees such as Justices Breyer, Sotomayor, Kagan, and Jackson writing opinions or voting in the majority in several major state-strengthening decisions.131
Furthermore, the Court has dug even deeper into its state-strengthening posture in recent Terms through decisions such as Dobbs, Mallory, and Pork Producers, extending its commitment to federalism. Although a federalism rebalance remains possible, it is increasingly unlikely.
C. Why the Roberts Court May Be Rejecting Federalism Rebalancing
Overall, although the Roberts Court has issued both federal-strengthening and state-strengthening decisions, the Roberts Court’s pro-state decisions are uniquely impactful. This pattern indicates that the Court is engaging in a federalism revolution more one-sided than that of the Rehnquist Court.132 Naturally, legal scholars might question why.
One reason could be simply that the Roberts Court is prioritizing a jurisprudence of federalism. There is evidence of this in the sheer magnitude of the Court’s major federalism decisions. For example, Shelby County resulted in the deconstruction of federal oversight in an area historically regulated by federal power: voting rights.133 Dobbs similarly removed federal oversight in another area that had been under federal control for decades: abortion access.134 NFIB weakened three major sources of federal legislative power (the Commerce Clause, Necessary and Proper Clause, and General Welfare Clause), evincing a jurisprudence that views federal legislative power as limited.135
Additionally, the Roberts Court has repeatedly weakened (or at least declined to empower) federal agencies, curbing federal authority in favor of state regulatory power. In West Virginia v. EPA, for example, the Court strengthened the major questions doctrine and thus limited broad areas in which agencies could regulate without explicit congressional authorization.136 And in Loper Bright, the Court overturned the decades-old Chevron137 doctrine in holding that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”138
Together, these far-reaching decisions indicate that the Roberts Court is not only refusing to engage in judicial balancing but is also systematically restructuring the federal-state relationship to further magnify state power. The consistency and breadth of these decisions and their underlying rationales seem to go beyond judicial conservatism alone, as evidenced by the state-strengthening decisions joined by the liberal justices and not split down ideological lines.139 Instead, it suggests the Court views federalism as an independent and fundamental value rooted in the structure of the Constitution.
Turning to why the Roberts Court prioritizes a jurisprudence of federalism, the language in several recent decisions offers some clues. In Dobbs, the Roberts Court highlighted that when states had the power to regulate abortion pre-Roe, “each [s]tate” could do so “in accordance with the views of its citizens.”140 This language emphasizes the ability of states to enact their own tailored legislation specific to the needs of their populations — something that would be difficult to accomplish with federal-level action. In Pork Producers, the Roberts Court discussed the variety of state laws “aimed at protecting animal welfare”141 and underlined the “extreme delicacy”142 with which courts should act when considering whether to “[p]revent[] state officials from enforcing a democratically adopted state law in the name of the dormant Commerce Clause.”143 In doing so, the Roberts Court again underlined the central role of state democracy in the federal system, reasoning how minimal federal intervention would allow diverse state democracies to function as intended.144
This principle would similarly apply if the Court’s pro-state shift leads more litigants to pursue individual rights protections under state law. As the federal judiciary shifts power from the federal government, it stands to reason that more litigants may begin to pursue relief at the state level. Judge Sutton describes a benefit of this outcome as the ability of “a freer hand in doing something the Supreme Court cannot: allowing local conditions and traditions to affect their interpretation of a constitutional guarantee and the remedies imposed to implement that guarantee.”145 Judge Sutton goes on to contrast how a Wyoming court might value property rights or takings claims differently than, say, a New York court would.146 Given the Roberts Court’s enunciated reasons for empowering state legislatures, it is possible that empowerment of state courts could be a parallel reason for the Court’s pro-state shift.
Finally, it is possible that the Roberts Court is prioritizing federalism because originalists on the Court believe that shifting power into the hands of the states is closer to what at least some of the Founders envisioned for the federal system.147 Indeed, the Marshall Court interpreted much of the Federal Constitution and the Bill of Rights to limit only federal activity and not state or local activity.148 Since then, the Fourteenth Amendment has been interpreted to incorporate much of the Bill of Rights, limiting state incursions on individual rights.149 The Roberts Court has not explicitly questioned the incorporation doctrine,150 but the pre-incorporation structure of federal and state courts could still illuminate how the original ratifiers of the U.S. Constitution may have understood the structural value of federalism in the Constitution. If this Note is correct that the Roberts Court is committed to a jurisprudence of federalism as a constitutional value, then originalists on the Court would naturally be interested in this type of evidence of how ratifiers originally understood the federal structure in the Constitution and could be interpreting this evidence to favor a pro-state shift.
The Roberts Court’s reasons for rejecting judicial balancing diverge from the Warren Court’s reasons for doing the same. While the Roberts Court has emphasized the benefits of a variety of state and local approaches to resolving policy issues,151 the Warren Court emphasized the need to protect individual rights uniformly and on a national level. In Heart of Atlanta Motel, Inc. v. United States,152 the Warren Court discussed the “burdens that discrimination by race or color places upon interstate commerce”153 to justify why it was upholding Congress’s exercise of its commerce power.154 Griswold v. Connecticut155 similarly emphasized “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” to justify why the Court was overturning a state law.156 This contrast illuminates a central difference between the Roberts and Warren Courts: While the Roberts Court prioritizes the rights of individuals to be governed by state and local democracy, the Warren Court prioritized the consistency of individuals’ rights across state lines.
Potentially more important than the specific reasons for the Roberts Court’s rejection of judicial balancing are the implications of this rejection. Below, Part III examines these implications for states, courts, and legal scholars.
III. Implications of Rejecting Federalism Rebalancing
There are several implications of the Roberts Court digging deeper into its commitment to federalism. For example, while the Court in Mallory eroded certain bounds of general personal jurisdiction,157 future decisions could continue this erosion into the specific personal jurisdiction doctrine. This runs the risk of upsetting party expectations, particularly for corporations that operate in many states.158
Axiomatically, the Roberts Court’s rejection of federalism balancing will likely introduce a greater role for states in the federal system. One dimension of this greater role could be a judicial one as litigants place heightened emphasis on state constitutional law as a source of individual rights.159 While this change naturally means that there would be fewer uniform national-level constitutional rights, it could lead to meaningful development of state constitutional interpretation. Historically, state constitutions drove the development of the Federal Bill of Rights,160 and even now there are many examples where state constitutions are more protective of rights than the Federal Constitution is.161 Moreover, civil rights groups seem to be responding to this evolution by focusing more on state constitutional law as a source of individual protections.162
Another dimension could be an administrative or legislative one as states fill the space that the federal government once occupied in certain issue areas. Although the post–New Deal era created an expectation that the federal government would regulate certain activities,163 the pro‑state shift in the Roberts Court has reversed that expectation. This shift of power to the states could lead (and in some cases, has already led) to diverse state-by-state approaches to many major issues.
For example, in Shelby County, the Court shifted the power to change voting procedures without federal review back to states by striking down the formula that decided which states were subject to such review.164 In doing so, Shelby County removed a roadblock to states wishing to change their election laws without federal oversight and almost immediately produced election law changes in states that had previously been subject to the preclearance regime.165 Mallory similarly resulted in a historic potential power shift, because it created a “danger” that “henceforth every corporation doing business in a state could be subjected to general jurisdiction based on implied consent and not on contacts.”166 Dobbs removed federal oversight over state abortion laws, producing widely divergent laws in states — some of which protected abortion access more than they had previously and some of which protected it less.167 Pork Producers appeared to shift dormant commerce clause jurisprudence by declining to strike down a far-reaching state regulation.168 And, despite its mixed impact, NFIB ultimately limited Congress’s power to legislate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.
The Roberts Court also shifted federal agency regulation of major policy areas through “major questions” decisions like West Virginia v. EPA. These decisions portend an evolution of this doctrine to limit the ability of federal agencies to regulate environmental issues, as well as housing and workplace issues, until Congress specifically authorizes these powers.169 This evolution could then empower state regulators who seek to fill gaps in which the federal government is no longer regulating.170 As each state’s regulators pursue their own solutions to these issues, the country would likely see a more diverse array of policies in these areas. Diverse policies could allow for more experimentation, with certain states pursuing solutions that are more interventionist than anything that would have been politically acceptable on a national scale, and with other states pursuing solutions that are more hands-off. While some might lament the loss of a unified national solution for these issues, it is arguable that a more fragmented but localized approach is closer to what at least some of the Founders envisioned for the federal system.171 Importantly, the Roberts Court’s pro-state shift in these areas is not only accomplished through individual decisions, but through the development of a jurisprudential doctrine — the major questions doctrine — indicating that future Courts may continue this shift as they apply this doctrine.
The Roberts Court’s rejection of federalism balancing is also likely to impact administrative law jurisprudence in the long term. Loper Bright, for example, represented a dramatic shift in administrative law jurisprudence.172 By overturning the Chevron doctrine, which gave deference to agency interpretations of their governing statutes,173 Loper Bright expanded the role of the judiciary in interpreting agency authorization statutes and in policing whether agencies have exceeded the bounds of their statutory authorization.174 It is too soon to know exactly how this jurisprudential change will alter the federalism structure, but it is likely that this shift will disempower federal agencies. When courts gave Chevron deference to permissible agency interpretations of governing statutes, there was, logically, a lesser chance that an opponent of that agency interpretation could successfully challenge it. Although some scholars had questioned how much deference Chevron introduced into the courts,175 the loss of a formal Chevron doctrine will likely have some impact now that courts will engage in a true de novo interpretation of agency statutes.176
Moreover, the Court that follows the Roberts Court could be affected by the Roberts Court’s rejection of judicial balancing. For example, the next Court might continue the “Federalism Revolution” of the Rehnquist and Roberts Courts. The next Court might also choose to embrace federalism rebalancing, perhaps out of concern for judicial legitimacy. Either way, it would be odd to imagine a future Court operating in blindness to the Roberts Court’s practice when trying to find their own federalism balance.
Conclusion
The future of the Roberts Court is yet to be seen, but it increasingly seems that the Court will continue to reject federalism balancing. As already noted, this Note’s aim is to inspire a conversation about the concept of federalism rebalancing and, moreover, whether the Roberts Court has in fact rejected such rebalancing. Hopefully, the framework of the term “federalism rebalance” can help lawyers and judges more precisely consider whether a push for doctrine to be pro-state or pro-federal is a choice framed by jurisprudence or simply by a desired outcome. Additionally, it could help legal scholars explain what precisely is unique about the Roberts Court and how the Court fits into the broader history of major Chief Justiceships.
What seems clear at this juncture is that the Roberts Court has issued a large number of broad state-strengthening decisions. While several historic Supreme Courts resemble the Roberts Court in this respect, very few resemble it in its one-sidedness, suggesting that the Roberts Court is rejecting a historical trend where Courts “rebalance” after a major federalism shift.
This prompts the question of why the Roberts Court is pursuing what looks like an underlying jurisprudence of federalism — perhaps this stems from a belief that this jurisprudence reaches a better result, or perhaps it reflects an understanding that a pro-state shift better reflects the original understanding of the federal-state structure under the Constitution.
While the Roberts Court’s motivation for this shift is up for debate, the significance of this shift is notable. By shifting power to legislate, adjudicate, and regulate within major policy areas to the states, the Roberts Court has profoundly altered the federal-state balance and shows few signs of slowing.