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Murray: The fight doesn’t end with the Supreme Court

By Leah Murray - Special to the Standard-Examiner | Jun 15, 2022

Photo supplied, Weber State University

Leah Murray

A little while ago, a Supreme Court opinion was leaked to the press, which supported overturning the 50 year old landmark case, Roe v. Wade. Too often in our country people believe the political fight over something ends when the Supreme Court rules. I was taught that in my early government classes, as I imagine many of you were as well. As a result, many people in this country were either righteous or raging at the turn in abortion law.

I reject either response out of hand, because they suggest that this is a final decision. It is not. The Supreme Court is not Moses and no Supreme Court decision is ever final. In 1895, the Supreme Court ruled in Pollock v. Farmers’ Loan and Trust Company that the federal income tax was unconstitutional. I imagine that all of you paid your federal income tax in your last paycheck, so you know that case was not final. In 1905, the Supreme Court ruled in Lochner v. New York that a New York law that set maximum work hours for bakers was unconstitutional. Any of you who enjoyed your weekend understand that employment law is now a thing employers need to abide by. So it is with abortion law. In a republic, it is never over, the fat lady will never sing. In 50 years, my grandchildren will still be arguing about this.

Given my assertion that this is not a final decision is true, I would rather look at what the court is actually doing. In a number of recent rulings, we see the power in this country moving to the states. For an example not based in abortion law, in Shinn v. Ramirez, the court ruled that a federal court may not hear new evidence to support claims of bad representation in state courts. The court is essentially saying state courts will rule supreme in criminal justice law.

In the leaked abortion opinion, we hear Justice Samuel Alito saying, “return the issue of abortion to the people’s elected representatives.” Pay attention to what the court is saying in these two cases, which reflects a change in expectations of our federalism system: States are where final decisions will be made on the controversial issues of our times. The Supreme Court will now, for the foreseeable future, be putting state legislatures in the driving seat of law. This is so interesting for two reasons.

First, I expect to see a change in our very nationalized politics. If law is now to be settled at the state level, as the Supreme Court benches the federal government, why would Utah argue about anything that happened in Georgia? The national messaging around politics should cease to be as relevant. If states are driving, it should really matter a lot less who the president is or who is in Congress or what happened in Maricopa County, Arizona.

Second, and this is the one I really want you to hear me say: If it is the case that who is in the presidency or who is in Congress does not matter, then you need to stop saying your vote does not matter because your presidential choice did not win. The only elections that will matter are state elections, and sometimes our legislative seats come down to very narrow margins. In Weber County, a mayoral race was decided by rolling a die a number of years ago because it was a tie.

Every vote will count. And if we are going to fight about abortion and criminal justice and elections and critical race theory and guns, as I am sure we will continue to do, all of those fights will happen in the states. Every vote will count. Every contact to an elected representative will count. State legislators will matter in a way they have not in quite some time and you can run into them at the grocery store; a state legislator once coached my child in softball. The people who make the decisions that affect us will become very accessible to us and every American will learn they have a role to play in keeping this republic.

While I have feelings about these Supreme Court decisions, my overriding response seems to be something along the lines of agreement with Justice Alito in returning issues to the people’s elected representatives and my job will be to make you all pay attention to them.

Leah Murray is a Brady Distinguished Presidential Professor of Political Science and the academic director of the Olene S. Walker Institute Politica & Public Service at Weber State University.

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