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Jedediah Purdy @JedediahSPurdy
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Thread--The Jurisprudence of Red-State Separatism: A Speculative Future for a Right-Wing Supreme Court
1/ Some of the Court's right-most opinions recently have been what you might called Red-State Separatist:
2/ By this I mean, first, empowering some mix of elites and majorities in red states to run things their way against national legislation that's more left-egalitarian:
3/ (A) Making the Medicaid expansion optional (2012), essentially so the South could decline it for a mix of racial, libertarian, and low-wage-growth-model reasons; (B) Invalidating pre-clearance for voting-law changes under the Voting Rights Act (2013)...
4/ ... which lets (again, mainly Southern) states start engineering their voting laws to discourage Democratic-tending voters.
5/ Although it hasn't really happened yet, the next frontier, which Masterpiece Cakeshop invited this year, is a further model: jurisprudential opt-outs for "red America" attitudes--expressive and associational freedoms to opt out of identity-egalitarian antidiscrim policies...
6/... so that even within liberal states, or under a national antidiscrim scheme, red America still gets its opt-out.
7/ For the spirit of these opt-outs, read Alito's dissent in Obergefell, the marriage-equality case (2015). He imagines a totalitarian political correctness where cultural dissenters whisper their views behind closed doors. That's the narrative that will power the opt-outs.
8/ In this forecast, personal (1st Am) opt-outs grow. Maybe the Court doesn't reverse Roe explicitly, but just starts upholding TRAP laws (targeted restrictions making abortion all but illegal) so that, as in many regions now, it's unavailable where majorities oppose it.
9/ Maybe the Court keeps Obergefell--marriage will still be portable from NYC to Charlotte, for example--but expands opt-outs for businesses, so that Red and Blue sort by town, neighborhood, cultural signals, etc.--a market-mediated version of discrimination.
10/ Meanwhile, the Court continues to make campaign finance impossible, cut back on public unions, gut regulation from time to time on First Amendment grounds.
11/ The result would be a more unequal country, and also a more culturally divided one, regionally and at smaller scales--call it a jurisprudence of cultural balkanization, married to a jurisprudence of right-wing federalism.
12/ This has been an exercise in forecasting based on pretty good acquaintance with the recent high-profile cases. I'd put middling odds that this is where things will go--& are already going--though of course no one can know.
13/ Anyone who knows me or my writing knows I have strong left-liberal views about all of this, not just abstractly but in my politics and scholarship. The point of this thread, though, is mapping rather than denouncing.
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