Brett Kavanaugh's appointment to the U.S. Supreme Court, after three months of rancorous debate, appears to be wildly unpopular in Massachusetts. Both of the state’s U.S. senators voted against it, in the process rhetorically rending their garments in outrage. Other local politicians and community leaders decried the result. Popular disapproval of Kavanaugh seems more intense than than in the nation at large. Yet there is reason to suspect that Kavanaugh’s ascension will — like it or not — prove beneficial to the Bay State.
It will be an ugly victory, if it happens.
The theory is that the new, hyper-conservative high court will remove a host of federal protections that have accumulated over the past century — dropping them into the laps of states, most of which are unable or unwilling to pick up the slack. We’re talking here of issues such as choice, LGBTQ rights, environmental protection as well as business regulation.
Massachusetts, however, figures to be one of a handful of states that could be considered safe havens. That will make the state a magnet for young, skilled, educated Millennials and post-Millennials, and the corporations eager for those workers.
It’s not a far-fetched notion. In fact, the shake-out is already underway, as state legislatures define a growing gap between red and blue states. In particular, college-educated Millennials have flocked to cities, mostly regardless of the state: liberal-governed Massachusetts, Washington, Oregon, and Colorado are among the top 10 states in Millennial population growth, according to Governing Magazine, but so are conservative-led Texas and Florida.
It has always been assumed that in the competition among states, relatively mobile corporations would reward a race to the regulatory bottom. The less a state regulates, the better the chance a company will move there. But increasingly — as the competition for Amazon’s second headquarters has shown — the advantage lies with locales that attract skilled workers. And, skilled, educated Millennial and post-Millennial workers are already showing themselves more willing than previous generations to migrate toward environments that reflect, and protect, their diversity and liberal attitudes.
But, up until now, the federal government has provided floors that kept conditions in the different states relatively equal. Austin and Orlando might look much less appealing once those floors fall out from underneath them.
For example, if abortion becomes illegal in Texas and Florida.
Texas is among a dozen or so states, including Massachusetts, that had anti-abortion laws on the books — old, nearly forgotten, and currently unconstitutional restrictions that could become relevant if Roe v. Wade should get overturned. Four others have more recent laws designed to take effect if Roe v. Wade gets overturned.
Texas has a conservative, pro-life legislature and governor, who have already been trying to restrict abortion access. That state and others are likely to go as far as the Supreme Court allows.
In Massachusetts, by contrast, lawmakers moved quickly to nullify the old anti-abortion statute this past summer, after Justice Anthony Kennedy announced his retirement. If Kavanaugh and the four other conservative justices nullifies or weakens the federal protection secured by Roe v. Wade, Massachusetts will be among the states where abortions remain legal and available.
But that is just one high-profile result of the likely impending defederalization.
The Supreme Court now appears to have a long-term majority actively opposed to the modern regulatory state. Other federal courts are being rapidly stocked with like-minded Donald Trump appointees. Congress, even if it tips toward Democrats in coming years, is too divided to strengthen statutes that the court waters down. Exploding deficits from the recent tax cuts will choke funding for regulatory oversight.
The resulting evaporation of the 20th century federal regulatory state will transfer workers’ rights, discrimination protections, environmental regulation, consumer protections, voting rights, and education access to individual states.
Those states are by no means unanimous in their desire to step into that breach. Many Southern and Midwestern states continue, for example, to push back against LGBTQ rights that younger Americans largely take for granted — and the Supreme Court has already shown some willingness to go along, as shown in the recent Masterpiece Cake ruling. Some speculate that the federal right to same-sex marriage could be reversed with Kavanaugh replacing Kennedy, returning us to a country divided geographically on that issue. Transgender rights, already different from state-to-state, could become even more so as the Trump administration continues to roll back Obama-era protections, with court approval.
Health care coverage is another example. Already there have been rulings rolling back some of the federal requirements of the Affordable Care Act (ACA). Massachusetts, with a combination of early, so-called RomneyCare regulations and more recent changes, has maintained high standards of insurance requirements and near-universal coverage. Other states have refused Medicaid expansion, and watered down what qualifies as acceptable insurance. If the courts go further in dismantling ACA, the disparity will only grow between coverage in Massachusetts, and those uninterested in taking similar steps.
Other potential examples abound. The already-weakened Voter Rights Act protections are likely doomed under the coming Court makeup, giving states carte blanche to reinstitute barriers to voting without federal oversight. Other federal discrimination protections will likely fall as well.
Most broadly, however, will be a likely eating away of the authority of federal departments and agencies.
The White House, in promoting Kavanaugh’s nomination, boasted of his record in opposition of federal regulators — one memo sent to business groups, Politico reported, claimed that the judge has overruled them 75 times.
Several analyses, including one from Brookings Institute, predict that the addition of Kavanaugh will lead to the erosion or reversal of the 1984 Chevron v. NRDC ruling, which gives great latitude to federal agencies. That, as the Brookings article put it, would “rein in the agencies at the heart of the modern administrative state.”
It’s not just the Supreme Court that is heading in this direction, likely for many years to come. Trump has already nominated dozens of judges to the country’s federal district and appellate courts, with close to 50 already confirmed. They are likely to be more ideological than those of previous presidents, in part because the Republican-controlled Senate is requiring a mere majority for confirmation (a change made by Democrats during the Obama administration), and also because Majority Leader Mitch McConnell has ceased honoring “blue slip” privileges of home-state senators to, in effect, veto nominations.
How states fill in the gaps is not just a matter of which states have Democrats or Republican in control of the legislature. States have developed institutional differences that cannot be easily reversed.
In Massachusetts, for example, state courts are filled with judges, appointed by Democrats and moderate Republicans, who give more robust protections than those elsewhere — same-sex marriage being one of many examples. The Commonwealth’s regulatory bodies are generally active and — compared to many states — reasonably well funded and staffed. The voters and organizers in the state have been willing and able to use public pressure and the state’s ballot initiative process to force action as well.
Perhaps most importantly, the office of Massachusetts’s Attorney General is aggressive and serious in using state laws to protect workers’ rights, press for corporate compliance, ensure equal protections of the law, and press for social justice. That’s an attitude that long predates current AG Maura Healey, but has expanded on her watch and is unlikely to ebb after she’s gone.
Those conditions don’t exist in many other states. As a result, the withdrawal of federal oversights will almost certainly result in widespread conditions that younger, generally liberal professionals will view as hostile to workers, consumers, the environment, LGBTQ, immigrants, families, public schooling and more.
Make no mistake: Massachusetts would feel the effects as well. No level of state action can replace a robust OSHA, NLRB, EPA, HUD, SEC, or DOJ.
Still, the Bay State should be poised to follow a very different path than most other states — after being among the most resistant to conservative swing that lead there.