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Brigid Bergin: It is The Brian Lehrer Show on WNYC. Good morning again, everyone. I'm Brigid Bergin, senior reporter in the WNYC and Gothamist newsroom, filling in for Brian Lehrer. Just before we shift gears, it looks like that last segment we were talking about legislation related to plastics, and there may, in fact, be a deal out of Albany. We'll get more news from that in the WNYC newscast coming up and throughout the day, but possibly some good news on that front for supporters of that legislation, much more to come.

For now, we're going to turn to a different segment. We are turning now to a renewed push by advocates for expanding rights in criminal justice, voting, reproductive freedom, environmental safety to focus on state courts instead of aiming for a Supreme Court decision. Journalist Eyal Press writes about this progressive embrace of federalism in this week's New Yorker, and he joins us now.

Welcome back to the show, Eyal.

Eyal Press: Thanks so much. It's great to be here.

Brigid Bergin: Now taking the Dobbs decision as an example of where the Supreme Court rolled back rights, reversing Roe v. Wade which had ruled that the right to abortion was a federal constitutional right, now reproductive rights are dependent on the laws and constitutions of individual states. That's where abortion rights advocates are focusing their efforts, is that right, in the 50 states instead of one federal court?

Eyal Press: Absolutely. On that issue, the Supreme Court was explicit about it. It said we're going to leave this up to the states to fashion their own laws on abortion. We see these battles playing out very vividly across the country now in state courts, but also politically. Because one of the points of my piece and the issues that drew my attention is that the state constitutions, generally, are just much easier to change, to amend.

To amend the federal constitution, you need three-fourths of the states' legislatures to approve it. It can take decades. It can stall and never happen. With states, you often just need a single popular vote, a referendum. We're seeing those referendums, particularly around abortion, right now because supporters of abortion rights are rightly thinking, you know what? We've got a popular issue here. Let's put it to the vote and let's see what voters decide. Should this be a right that all people within this state have? I think there are as many as 14 states this November will have referendums on abortion that they'll be voting on.

Brigid Bergin: Sure. New York included, of course, what advocates are calling the Equal Rights Amendment. Essentially, if the Supreme Court had ruled that the right to abortion was unconstitutional, then this wouldn't be a recourse that individual states could take, right?

Eyal Press: Yes. If the Court says -- This was put to me by Matthew Segal, who runs an initiative at the ACLU right now that is really pushing advocacy on the state level. The way he put it was, if the Supreme Court asserts or affirms a federal right, states are bound to respect that. They cannot violate that right. We've seen that with gun rights, for example, the Second Amendment rights, where the US Supreme Court has been very supportive of Second Amendment rights, and there's not a lot states can do to contravene because of the supremacy clause in the US Constitution. Where there's an absence of a federal right, as is now the case with abortion, as is also the case with voting rights, as is also the case with a lot of other issues, states have a lot of leeway.

That's the starting point for my piece. I attended a conference at the Brennan Center here in New York City earlier this year, and you had advocates and judges and lawyers and also students gathering, they actually filled the room and there was an overflow crowd, talking about how state courts will now be really the ground zero for these battles around these rights.

Brigid Bergin: In that piece, you point to some other specific rights in some other state constitutions, like New York's right to social welfare, or Montana's right to a clean and healthful environment, that gives advocates a way into a right to shelter or a way to combat climate change. State constitutions are more amenable to this approach in many cases. Is that what you're finding?

Eyal Press: Yes, they are, and what I mentioned earlier in that they're easier to change. You will have state constitutions, naturally, reflecting contemporary concerns, like climate change. Actually, in Montana, that provision, the right to a clean and healthful environment, you won't find that language in the US Constitution. It was not in anyone's mind in 1789, but it was on folks' mind in Montana in 1972 when the constitution there was rewritten. This was, I think, two years after the first Earth Day. The folks who got together said let's include this in our constitution, this right to a healthful environment.

In Montana, I talk about a case, a successful case, actually, called Held v. Montana, in which youths in Montana, represented by a nonprofit called Our Children's Trust, have actually successfully filed a successful lawsuit that basically is pushing the state to no longer ignore greenhouse gas emissions when approving energy projects. It's a big deal and it's happening now. There's a similar case in Hawaii.

A lot of this litigation-- again, it could happen on the federal level. In fact, there are cases in federal court where that's happening, but there aren't similar provisions in the US Constitution, so it's trickier to win, maybe harder to win. It's also the case that you see the dynamic, and I quote a justice in Hawaii talking about how the federal courts have abdicated their responsibility on this front. Because at the moment, and I'm sure some callers will have this view, but certainly a lot of judges see themselves as above the political fray, outside of the political fray.

In reality, the article I wrote is really about how many progressive advocates right now see things like environmental rights, abortion rights, voting rights, as rights that are not going to be well-received. Cases will not be well-received at the federal level, which is stacked with Trump appointees, where the Supreme Court right now is issuing a lot of 6-3 decisions with the three justices appointed by Donald Trump in the majority that curtail rights like those that I just mentioned. What do you do? You could give up or you could turn to a different set of courts, and that's what I think we see happening.

Brigid Bergin: If you're just joining us, I'm Brigid Bergin, in today for Brian Lehrer, talking to Eyal Press about his article in this week's New Yorker. It's called States of Play. Do you have a question for Eyal Press about this new take on states' rights? I'm curious if we have any attorneys or activists involved in any cases like this on the federal or state level. What's your experience been? Do you, too, see this as potentially a new pathway to protect rights at the state level? Give us a call. The number is 212-433-WNYC. That's 212-433-9692. If you can't get through on the phone, you can text that number or tweet us @BrianLehrer.

Eyal, I think many people remember when states' rights was the excuse for Jim Crow laws and racial discrimination. How has that changed?

Eyal Press: That's a great question. Actually, there's an irony to the whole story of how, as you put it at the outset, progressives now embracing judicial federalism, looking to states to affirm rights, but actually, this isn't new. In my piece, I talk about- certainly, the most famous intervention and piece of writing on this subject appeared in 1977, and the author was Justice William Brennan.

Brennan, of course, was a pillar on the Warren Court, which is rightly associated with the expansion of federal rights. The major decisions of the Warren Court expanded the power of the federal government to invalidate state laws in places like the Jim Crow South to bring about progress in civil rights and on integration and other landmark rulings in the '60s and up through to the early '70s. In 1977, the Court has shifted quite considerably to the right by then, and Justice Brennan gives a speech, which is later published in the Harvard Law Review, and it's one of the most widely cited articles, law review articles ever published. In this article, Brennan, who was himself a justice on the New Jersey Supreme Court before he was nominated to the US Supreme Court, basically calls on state courts to fill the breach and to defend and expand protections that he feels the Supreme Court is abdicating. He senses this turn away from an expansive view of rights in the US Supreme Court, so he calls on state courts to do more and to cite their own constitutions, to protect individual rights, free speech, but also civil rights and all kinds of rights.

If we take that premise and think about marriage equality, that is exactly what happened. I interviewed Mary Bonauto, a civil rights attorney at GLAD who was, I would say, the most instrumental figure among others in litigating cases that eventually resulted in same-sex marriage being legal throughout the United States. The US Supreme Court ruled on that in 2015. As Bonauto told me, the story began in the late 1990s, and where she and her colleagues went was to state courts. They went to Vermont. They went to Connecticut. They went to Massachusetts where in 2003 they won.

You had this story of, actually, it's the reverse of what people who think of states as regressive would assume. The states actually came before the federal government in saying, you know what? Same-sex couples should have the same rights as other married couples, as couples of different sex. Of course, now that's not a controversial issue, but at the time in the late 1990s, GLAD did not want the issue to come before the Supreme Court because they sensed they would get a negative ruling. They went first to the states and eventually, almost 20 years later or a decade later after the Massachusetts ruling, they did win in US Supreme Court.

Brigid Bergin: I want to go to Bob in Lawrenceville, New Jersey, a former New Jersey supreme court reporter for the Star-Ledger. Bob, I know that you're familiar with this piece. How do you want to weigh in? Any question for Eyal?

Bob: Well, I'll make a couple of points. It was an excellent article. I recommend it highly. The point that he makes about the politicization of current state judiciaries is good because it makes legitimizing this movement harder. I think I want to point out that the New Jersey supreme court upheld funding of poor women's abortions under the state's equal protection, and it upheld free speech rights in shopping malls and on private university campuses. They have long used this technique, and I just commend The New Yorker for their recent article.

Brigid Bergin: Bob, thank you so much.

Eyal Press: Thanks so much for the comment. I just want to add to that. He's right that another-- just as state constitutions are easier to change, state supreme courts are also less insulated from politics. Judges in, I think nearly all the states in some form or another are elected. Those elections, as I discuss in the piece, have grown into hyper-partisan battles. In some cases, you see the danger of not insulating courts from the political process. On the other hand, state constitutions are very affirmative, generally speaking, of the popular will and explicitly affirm things like voting rights. They adhere to what scholar Miriam Seifter calls the democracy principle.

At this moment, where I think a lot of people are thinking our democracy is in peril, and these decisions by the US Supreme Court do not in any way reflect the popular will, certainly not on abortion, probably not on the Second Amendment, and yet they're being handed down and imposed on the entire country; this is a counterweight to that, potentially.

Brigid Bergin: Let's go to Mark in Staten Island. Mark, thanks for calling.

Mark: Yes, thanks very much. You mentioned reproductive rights. I'm calling about end-of-life autonomy and specifically, medical aid in dying, which is a big issue in New York. The Brian Lehrer Show had a discussion of this recently. You mentioned Montana. I didn't get a chance to read your article, but in New York, we're having a very hard time as a state legislature getting this passed, even though many other progressive states have established the right of terminally ill individuals to- if their suffering becomes unbearable, to secure aid in dying. New York State, we seem to have the legislature is totally intimidated by religious fundamentalists and whatnot.

Anyway, are you familiar-- in Montana, I understand that the courts established the right for terminally individuals to secure medical aid in dying, so they didn't have to deal with the politicized legislature. Are you familiar with that at all? I'm just wondering if the guest has any familiarity on that front.

Eyal Press: I'm not. I think a whole separate article could be written about that. I will say that Montana features in my story, actually in two instances. We mention the climate change issue, where Montana's constitution recognizes the right to a clean and healthful environment. There was also a recent voting rights case in Montana brought by plaintiffs, including Native American groups, that claimed that a bunch of laws, including the elimination of same-day registration, disproportionately impacted them, and they won that case. In looking at that case and also in the amicus briefs filed around it, one of the things that became apparent is that they won because the Montana constitution very explicitly affirms the right to political participation and has a more exacting standard when it comes to laws that potentially interfere with that. The US Supreme Court, as mentioned, has weakened voting rights. The journalist, Ari Berman, talks about this in his new book Minority Rule.

It's a state where-- I don't know about the specific issue you asked about, but it's a state that is not- you wouldn't pin it as Massachusetts or California in terms of its political orientation, but it has an independence, and the supreme court there has ruled in interesting ways on these issues that veer from what one would expect politically.

Brigid Bergin: Just to pick up again on that idea of how this could and has cut both ways, we talk about how deeply partisan divides are in this country. Would this kind of approach lead us further into these separate red and blue zones with very different rights and obligations? We have a listener who texted in, what about the states that are ignoring the First Amendment by making it illegal for some groups to protest, or passing laws that mandate the Ten Commandments in every classroom, or denying actual news outlets the access to state hearings? Certainly, it seems that there could be people who might pursue this strategy for other purposes, correct?

Eyal Press: Absolutely. There's a law professor named James Gardner who's written extensively about judicial federalism. I quote him in my piece. He teaches at the University of Buffalo, my hometown. He's skeptical that judicial federalism right now can get very far, precisely because of what both this question and your point gets to, which is that there's so much partisanship right now. The combination of the partisanship and the politicization of state judicial elections and the judiciary, generally, what he thinks we will have is red states that faithfully mirror the US Supreme Court on issues like abortion, and voting rights, and free speech and a whole bunch of other things, and then blue states that will veer to the extent that they can. We'll have a checkered-- we won't have one set of rights in the country. On issues like abortion, it should be noted, that's long been the case, regional differences of profound nature that curtailed access to abortion for a variety of reasons, but I do think that that is a danger in all of this.

That said, the political map doesn't always correspond faithfully, again, to what you would predict when it comes to these rights. I open my piece by talking about a law professor in Wyoming who's bringing a case to try to expand the Eighth Amendment and basically to challenge mandatory life-without-parole sentences, which are unconstitutional for juveniles in the United States, but she's trying to extend that beyond juveniles to young adults in Wyoming.

Now, Wyoming is a state that voted nearly 70% for Donald Trump. You wouldn't think she would be getting very far. When she looked into rulings by the Wyoming supreme court, they quite explicitly said our constitution need not blindly follow the US Supreme Court when it comes to the Eighth Amendment. There's this spirit of independence in these Mountain West states. She's hopeful that along with provisions in the Wyoming constitution which bans cruel or unusual punishment, so it's not quite the same, it's a looser standard, some feel; that, that will enable her to get this Eighth Amendment protection extended beyond what is federally protected right now.

Brigid Bergin: Let's go to Alan in Brooklyn. Alan, thanks-- Oh.

Alan: [inaudible 00:21:12] I'm enjoying your conversation. What's often ignored is that for 150 years or so, we've had a precedent in the federal Supreme Court called Illinois Central, which established that the public trust doctrine is part of a constitutional texture of American law. It establishes that some assets are held not by any one generation of legislators to do with as they please, but they're held in trust for the present and future generations to be used in a way that's supposed to be sustainable. Now this was established at a time when there was no climate science widely known.

The development of that principle within the Supreme Court has been drastically stifled, since it was discussed widely in law review articles in the '70s, as soon as Reagan came in and began to put in very conservative justices who prevented the logical development of the principle from earlier bodies of property to the assets that comprise our climate system. This is not something that could be protected at a state level one by one because the climate by its nature is national and international. If you only protected in some states, it's not really protected.

Brigid Bergin: Alan, thanks so much for your call. Let's go to Caller 1 in Manhattan. Excuse me, that's Flora in Manhattan.

Flora: Hi, this is Flora Greenberg. I love the show, and I'm calling to talk about that spirit of independence. As a regular citizen, we no longer feel like we live in the United States of America. When we move, there are all these laws that we are responsible for knowing, not just whether we can turn on red or use our cell phone, but whether we can get married as a lesbian couple and adopt a child, whether we can get an abortion, whether we have the right to decide when we die.

We need some sort of a data bank, an up-to-date thing that we can look online or whatever and see if we're going to change jobs or retire, what that state, in fact, offers us or doesn't offer us. I just got a vacation home in Georgia. I have a New York State license; I cannot buy or lease a car in Georgia. I have to ship a car from New York. That's a stupid example, but it's just showing that we're no longer a United States. I mean, I think there are countries in Europe that have more similar laws than we now have within our states. Do you have a comment about that?

Eyal Press: What I would say to that is that I understand why you see that as a problem, and certainly, for certain fundamental rights, it is a problem. There's also an argument to be made, and it's made by Jeff Sutton who is a federal judge and the author of a book called 51 Imperfect Solutions, which I talk about in my story. Sutton is conservative, but he makes the case that when we have contentious issues, it's by design and preferable that we allow states to innovate and experiment and come up with solutions that don't have to be and are not imposed on the entire country when their supreme courts rule on something.

The downside of that is a victory for someone seeking an affirmation of rights in a state supreme court only means the people in that state benefit. No one else benefits who's not in that state. The positive side is if it's a ruling you don't like, and it came in Wyoming and you live in New York, it doesn't affect your life. I think there is a complexity to this. Again, I do think that there are certainly cases you can point to where you say this leeway that states have in the US system has been detrimental. That was certainly the case with the Jim Crow laws in the South and with all kinds of laws that curtailed people's rights because local customs were prejudiced against them.

On the other hand, the ability of states to leap ahead of the Supreme Court has also been beneficial. I mentioned same-sex marriage. Some listeners have probably seen the film about the Loving case, which led interracial marriage to be- well, bans on interracial marriage to be declared unconstitutional. In researching this story, I learned that that case built on state courts that had already ruled that way. California had done so I think 20 years before that ruling. It's not that the Supreme Court just suddenly decides and goes-- there are cases where that happens, but very often it's the states that will lead in these cases.

Brigid Bergin: Your piece touches on a lot of different areas where this strategy is being tried. We've talked a little bit about the environment. Voting rights is certainly another area where state constitutions are often more stringent than federal rules. Can you talk a little bit about what else is happening in that space?

Eyal Press: In the voting rights arena?

Brigid Bergin: That's right.

Eyal Press: I'm not an expert on voting rights, but understood from talking to people who are, that the right to suffrage is not explicit in the US Constitution, and that the Supreme Court has rolled back the Voting Rights Act and issued rulings that at this point-- Federal courts usually take issue with a restriction on voting only if it severely burdens the right to vote, and that's a pretty high bar. In this case, I mentioned in Montana, the Montana supreme court ended up deciding that any state law that impermissibly interferes with the right to vote is invalid, and that's a looser standard. It's a stronger defense of voting rights.

I think it's ironic that we are at a point in our history where the pendulum has swung. This was an issue where- obviously, in the South but elsewhere as well, you had very explicit and obvious restrictions on voting that were grounded in white supremacy and grounded in the Jim Crow legal regime. Here we are 50 years later and in a lot of states, you have advocates looking at the language of state constitutions to try to protect the right that they feel the US Supreme Court has basically said this is not our business, we are not here to enforce that.

Brigid Bergin: I think we're going to have to leave it there for now. I want to make one clarification. A listener called in. I mentioned the New York Equal Rights Amendment. That is something that a lower court ruled off the ballot, but then the Attorney General's Office is appealing. That's a little bit caught in the courts for now, but more was underscoring the point that is in Eyal Press's piece, which is the way that state constitutional changes are perhaps easier to make than federal constitutional changes.

Maybe just before we let you go, Eyal, just if you could talk about the difference between what it takes to change the federal constitution versus perhaps, for example, changing the constitution here in New York.

Eyal Press: Yes. That is the case with the ERA here, so it remains to be seen whether New Yorkers will get to vote on it. I think that generally speaking, it's just a lot easier to change and amend a state constitution. It is a lot easier for citizens to get involved and to feel like they have some connection to what these courts do and say and also to what is in the Constitution.

The federal process is remote, it's very slow to change. Some people see that as a virtue, but I think at this point where you have a Supreme Court that I would say has a very lopsided representation in terms of when we look at issues like abortion, and we look at the Second Amendment, and we look at voting rights, this is that protection from the people is a problem. It is very different, and I think that there will be a lot of foment in the years to come surrounding what state constitutions have in them and what rights they affirm, and what supreme courts in the 50 states do.

Brigid Bergin: Well, we will really leave it there for now. My thanks to Eyal Press, contributor to The New Yorker magazine, which this week features his article States of Play. He's also the author of the book Dirty Work: Essential Jobs and the Hidden Toll of Inequality in America. Eyal, thanks so much for joining me.

Eyal Press: Thanks so much for having me on.

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