Derek Monson: Dobbs and Cox’s Supreme Court nomination ring in a renaissance of federalism

The last week – the past year and a half, really – brought a whirlwind of activity that will shape American federalism for generations to come.

The impacts on the public have varied from one development to the next: some evoking controversy and division, others drawing broad praise. But all are making history and inaugurating a civic path forward for America grounded in a substantive rebalancing of federal and state authority – in other words, a renaissance of federalism.

Chief among the federalism-restoring developments is the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization and Gov. Spencer Cox’s recent nomination to the Utah Supreme Court.

We’ve seen all over the news how the U.S. Supreme Court, in its majority opinion in Dobbs, relinquished authority over abortion policy, sending it back to the states. Less frequently mentioned is that this authority had already resided with the states for the majority of American history – over 180 years before the Supreme Court seized it via Roe v. Wade.

A restoration of policy authority to states on any front would be a significant turn toward renewing more balanced, functional federalism. The fact that such a turn occurred in a controversial social issue, stoking significant divisions in public opinion, put the restoration of federalism on broad public display.

From a civic-minded perspective, what the Dobbs ruling means is that future state debates over abortion policy – in the Utah Legislature and the state courts – will transform from an exchange of campaign stump speeches to serious policy discussions. Before Dobbs, the obstacles to state abortion policy from Roe v. Wade and Casey v. Planned Parenthood made it something that state lawmakers could do relatively little about one way or the other.

After Dobbs, state officials are the primary decision-makers on abortion policy. Over time that will add real-world seriousness to policy debates that for 50 years have been primarily about positioning for election or reelection.

Cox recently nominated Judge Jill Pohlman to the Utah Supreme Court to replace the soon-to-be retired Justice Thomas Lee. Should Pohlman be confirmed by the Utah Senate, it would make history: the first female majority on the Utah Supreme Court, and the third consecutive nomination of a woman to the court – going back to former Gov. Gary Herbert’s final Supreme Court nomination. It is fitting that this historic era at the Utah Supreme Court will include deciding multiple potentially historic lawsuits regarding the constitutionality of policy decisions made by the Utah Legislature.

Among these lawsuits, most recently in the headlines is the Planned Parenthood of Utah lawsuit against the new state abortion policy that was triggered by the Dobbs decision. Another significant case is a lawsuit against Utah’s new policy defining who can participate in gender-designated sports in Utah public schools. Last is a lawsuit against the congressional maps approved by the Utah Legislature and Cox.

Abortion. Gender issues. Redistricting. These issues have been debated and legislated upon by the Utah Legislature and are undergoing constitutional scrutiny in state courts. Each by itself represents a momentous and historic policy and legal event. All three being adjudicated at the same time by state — not federal — courts are its own significant historical marker.

Taken together, the Dobbs decision and the developments in Utah’s courts point to a future in which state decisions fill a larger role in various areas of Utahns’ lives — a rebalancing of federal and state authority. From the civic perspective, this is a healthy and normal development in federalism: a natural evolution of the American experiment. The future will surely bring further evolution in our civic direction.

Choosing to take such a big-picture perspective just might lessen our contempt for others and reduce our proclivity toward threats and acts of violence due to differences in political identity and policy thinking. If we are going to be arguing over policy, politics and values, what do we have to lose by doing so a little more thoughtfully than we have of late?

Derek Monson | The Sutherland Institute

Derek Monson is vice president of policy at Sutherland Institute, a civic-minded nonprofit think tank in Salt Lake City.