The Supreme Court, Federalism, and Neoliberalism
The conservative project to dismantle collective, democratic power
The rightward shift of the Supreme Court of the United States (SCOTUS) has been fait accompli since Brett Kavanaugh was confirmed to replace Justice Anthony Kennedy. Kavanaugh’s ascension to the highest court shifted the center of the court from Kennedy, considered a moderate, to Chief Justice Roberts, himself a staunch Catholic conservative.
However, this rightward shift transformed into a lurch in the aftermath of Justice Ruth Bader Ginsburg’s death in 2020 and the subsequent rushed confirmation of conservative Amy Coney Barrett.
SCOTUS now has a solid 6-3 conservative majority and the center vote has shifted even further rightward to either Justice Kavanaugh or Justice Gorsuch. Rather than discuss the so-called conservative vs. liberal wings of the Court it is more appropriate to analyze the factions and individual dispositions of the conservative majority who hold the power on every decision that Court makes.
There has been an abundance of mainstream analysis on how this new conservative SCOTUS majority will approach specific precedents (e.g. Roe v. Wade) and but less has been said about the deeper ideological principles animating their jurisprudence, such as federalism and neoliberalism, and how these seemingly unrelated ideological principles act as interlocking strategies to reduce the scope and effect of the federal government’s power.
I’ll pause here to say that I listen to a number of SCOTUS oral arguments each year, including all of the big cases and any others that spark my curiosity. For the best SCOTUS coverage I highly recommend reading SCOTUSblog and for listening to oral arguments subscribe to the Oyez podcast feed. For additional analysis I recommend the following podcasts: Slate’s Amicus, Opening Arguments, and We the People.
SCOTUS & Federalism
All six members of the SCOTUS conservative majority are members of The Federalist Society (FedSoc) and all six are listed as contributors on The Federalist Society’s website. The Federalist Society is a conservative, libertarian interest group focused on (1) building robust legal and political counterarguments to what they describe as the “orthodox liberal ideology which advocates a centralized and uniform society” and (2) developing networks of like-minded elites who support, disseminate, reproduce, and instantiate these arguments. FedSoc believes that the national state exists only to preserve negative freedoms (e.g. security, speech, property) and understands the role of the judiciary as constraining the national state from exercising what it views as abusive excesses of power over individuals, corporations, civil society, and the 50 states that make up the national state.
At the root of FedSoc’s legal and political ideology is the strong presumption of federalism written directly into the US Constitution. Cornell Law School’s Legal Information Institute defines federalism as “a system of government in which the same territory is controlled by two levels of government” and within the United States this amounts to a “dual sovereignty” in which the federal government maintains certain powers over the states and in which states (and smaller subdivisions, like cities) retain certain powers for themselves. Under a federalist interpretation of the constitution, separation of power is understood in the following way:
(1) enumerated powers (any powers named explicitly in the constitution as belonging to the federal government, such as war-making, the postal service, interstate roadways)
(2) concurrent powers (powers that belong to both federal and state governments, such as taxation, road building, and creating lower courts)
(3) unenumerated powers (any powers NOT named explicitly by the constitution, which are understood through the Tenth Amendment as being powers delegated to the states)
It’s important to note here that SCOTUS jurisprudence has understood enumerated and concurrent powers to be settled law for a long time - there aren’t a lot of debates about what is/is not an enumerated or concurrent power. The question is what to do with unenumerated powers - this category covers, quite literally, any action not named in the constitution that federal or state governments COULD take.
The Tenth Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Federalist ideology understands the Tenth Amendment to be reserving the use of ALL unenumerated powers to the 50 states - health care policy, financial regulations, workplace safety, wage regulations, schooling standards, retirement benefits, unemployment benefits, environmental regulations, food safety, commerce regulations, energy regulations, housing policy, labor policy, etc, etc, etc.
FedSoc’s vision of the United States is one in which the federal government provides enumerated rights including homeland security, ensures collective security and freedom of speech/association/property, maintains a court system for legal recourse, and maintains a post office and road system, while most if not all other matters are left up to the executive, legislative, and judicial decision-making processes of the individual states. Ensuring that SCOTUS decisions arrive at federalist conclusions requires the selective (i.e. politically motivated) application of contested conceptual tools of constitutional interpretation, notably originalism (reliance on the original public meaning of a law) and textualism (reliance on the plain text of a statute to determine its meaning). These contested concepts have become the court’s lingua franca, even on its diminished liberal wing - as Justice Elana Kagan said in a 2015 Harvard Law School lecture, “We’re all textualists now.”
I am not a historian but I think it’s critical to note how the US version of federalism came to be and its role during the founding of the country as a concession to slave-holding states. Even the pro-federalism Center for the Study of Federalism concedes that strong version of federalism was written into the constitution because of the issue of slavery - slave-holding states wanted to constrain the power of any federal government from regulating the issue of slavery within the states. (It should also be noted that many scholars have noted how the concept of federalism has shifted over time - a paper by Robert Kaczorowski argues that conceptions of federalism and state sovereignty have shifted multiple times - from the founding to the civil war, from reconstruction to redemption, and from redemption to Roosevelt’s New Deal and LBJ’s Great Society - and that any so-called “founding principles” are actually far more complex and fluid than typically understood).
Additionally, the so-called US revolution against Great Britain can best be understood not as a peasant revolt or an uprising of the disenchanted masses but rather as a carefully coordinated rebellion of the elites who controlled commerce and patronage within the colonies (future states) and were opposed to a new regime of progressive tax policies. In this telling the 13 colonies functioned as distinct but interconnected fiefdoms of commerce and patronage that the founding fathers wanted to protect while still gaining the mutual benefits of collective security and integration of markets that a federation would provide. Thus situated, original purposes of federalism were non-infringement on slavery and non-infringement on existing elite control of commerce and patronage networks (i.e. colonies, then states).
In modern jurisprudence, federalism has become a justification for not only rolling back the power of the administrative state (e.g. USDA, EPA, OSHA, FCC, FTC, all cabinet level agencies) but also limiting the ability and scope of Congress’s power to delegate rule-making authority to administrative agencies. As an example, when Congress passed the Affordable Care Act, the legislation created a federal exchanges for individuals to purchase health insurance but it delegated the authority to develop the rules and regulations of those exchanges to the expertise of the Department of Health and Human Services - federalist jurisprudence would force Congress to develop these details itself and greatly constrain the administrative state from doing anything but executing the legislation as written and passed by Congress.
The practical effect of a federalist jurisprudence is fairly obvious: a diminished federal government unable to flexibly solve national problems, a diminished Congress unable to delegate flexible rule-making authority to expert administrative agencies, and states empowered to develop wildly dissonant policy and legal regimes on any number of critically important topics from health care to food safety to workplace safety to social security to climate change mitigation and adaptation. This effect is not theoretical - it is already happening.
SCOTUS & Neoliberalism
If federalism’s practical effect is to reduce the power of the federal government and delegate power to the states then neoliberalism’s practical effect is to reduce the power of government at all levels and delegate power to the private marketplace.
Neoliberalism is itself a contested concept,… but for our purposes it can be understood as both a recent stage of capitalism (starting in the post-LBJ era) and a multifaceted political, economic, cultural, and legal ideology that:
(1) elevates competition to the defining characteristic of human relations and redefines human relations as being primarily mediated through market relations and price signals
(2) redefines citizens as primarily consumers and marketplace competitors
(3) moves the locus of economic control and regulation from government to the private owners of capital
(4) favors reductions in government spending and widespread deregulation, global free trade, and privatization of previously public goods/services
Ultimately neoliberalism is an anti-democratic force that transfers decision-making power related to our collective economic life and the allocation of scarce collective resources from the public sphere to the owners of capital.
Much could be said on the power of capitalism as a totalizing, hegemonic ideology that both structures and pervades every nook and cranny of public and private life while atomizing the individual and gutting the scope of collective responsibility for public goods.
In his book Capitalist Realism, Mark Fisher describes the neoliberal stage of capitalism as an engine of decentralization that functions to gut and defang any and all capacities for collective, public action. Neoliberal capitalism is unique as a political economy because there is no centralized source of power - not the state, not a dictator, not the oligarchs, not the central planners, not the democratized masses - and this decentralization results in a vacuum of decision-making power in both public and private spheres. We are empowered to make individual decisions as consumers and sellers of labor and we can make economic decisions as corporate actors, but neoliberalism incapacitates us (there is no ‘us’ under neoliberalism) from exercising power to address collective crises like climate change and global pandemics.
When political institutions lack the capacity to respond democratically and address collective challenges, the resulting disenchantment displaces responsibility onto individuals, and ultimately the market, to cope with the downstream effects of collective challenges. Given that our collective life takes place within what Marx intentionally referred to as a “political economy” - constructed, rather than naturally occurring - it behooves us to consider the political inputs that influence the economy. SCOTUS is one of these key political inputs that acts on our collective life by creating and reinforcing the legal regime that structures our economy.
Some scholars refer to the conservative jurisprudence underlying the neoliberal structure of our political economy as the “Twentieth-Century Synthesis” - this synthesis is a legal framework in which the market is enclosed and protected from both justice and distributional claims and analyses of how anti-democratic power is wielded. In this framework, the economy itself is an autonomous hegemon that, when operating efficiently and free from state coercion, creates the conditions for competition, which itself advances human flourishing and efficient allocation of goods and services.
The synthesis attributes any negative externalities (e.g. climate change, environmental destruction, etc.) or distributional inequities (e.g. poverty, unemployment, housing and food insecurity, medical debt, etc.) to either inefficient state coercion not allowing the market to operate effectively or to the poor character of individuals who are failing the system rather than being failed BY the system.
The trenchant “How Law Made Neoliberalism” article by Amy Kapczynski, David Singh Grewal, and Jedediah Britton-Purdy in the Boston Review descrites the Twentieth-Century Synthesis as holding three presumptions that have been advanced by SCOTUS through both legal decisions and policy discourse:
The economy is an autonomous system with self-correcting power that ultimately serves the public good when allowed to operate with minimal interference
Legal, constitutional equality means equal individual treatment without any power analysis of the deep differences in distributional and justice outcomes based on race, class, and gender hierarchies
Democratic politics is an irrational system that gives an ill-informed and ill-equipped public the power to make opportunistic and reactionary decisions that must be subjected to technocratic, judicial oversight
These presumptions have led to a wide array of negative judicial outcomes. Antitrust jurisprudence has been systemically weakened at all levels of the federal judiciary and the rise of super-concentrated industries and massive private entities that are too big to fail. Labor laws and union have power been gutted, forcing workers into increasingly precarious at-will and zero hour relationships with corporate employers. Banking and financial regulations have been curtailed, allowing financial institutional to gamble with customer deposits on variations on the increasingly abstract investment vehicles that crashed the global economy 2008. Conservative jurisprudence has foreclosed on methods of redress for historical injustices such as affirmative action, school desegregation, and the racial wealth gap. And across a wide array of cases, SCOTUS treats democratically-accountable government as a non-competitive monopolist that must be disciplined to avoid inevitable corruption.
Thanks to the new 6-3 conservative SCOTUS majority, the long-term effects of neoliberalism on our legal system will likely be far worse than what we are already experiencing at present.
A Final Word
Far from being an apolitical public institution, SCOTUS is a deeply political, ideologically-motivated, and elite-populated entity that perpetuates the existing political economy and determines and enforces the existing legal regime. The new 6-3 conservative SCOTUS majority maintains serious ideological commitments to a broad project of reducing the scope, effect, and capacity of government power at all levels. This project depends on the selective application of the ideological principles of federalism and neoliberalism to interpret the constitution and legal precedent.
Full application of these ideological principles will result in significantly more and worse outcomes for both our democracy and and the pursuit of historical and distributional justice.