The NCSL Blog


By Natalie Morgan

From online shopping and wedding cakes to sports gambling and travel bans, the U.S. Supreme Court’s latest session prescribed a wide range of important political and legal precedents.

Our American States logoDuring the new installment of  NCSL’s “Our American States” podcast, Lisa Soronen, executive director of the State and Local Legal Center, discusses the implications of these decisions, as well as the impact the retirement of Justice Anthony Kennedy may have on state legislatures.

Soronen notes three cases considered significant gains for the states: South Dakota v. Wayfair, Husted v. Randolph Institute and Murphy v. National Collegiate Athletic Association.

In South Dakota v. Wayfair, the 5-4 decision overturned the physical presence requirement established in Quill, allowing states to reap the rewards of lucrative, online sales. Soronen calls it “perhaps one of the biggest victories (for states’ rights) in this century,” adding that the case “will be providing billions of dollars in tax revenue to states as states begin to collect.”

The case of Husted v. Randolph Institute, which contested the constitutionality of Ohio’s relatively standard process of removing individuals from voter rolls, garnered considerable media coverage, but the case was not always portrayed in the most accurate light, according to Soronen. 

“This case has been perceived and described as a tool to remove people from the rolls,” she says. “The reality for states is a little bit different.” 

While mass removal from voter rolls may appear an affront to democracy, Soronen says state and local governments are frequently sued for having too many individuals on the rolls. Thus, the Supreme Court decision secures a means for states to ensure individuals who “are no longer voting or—more importantly—no longer living in the district” are removed from voter rolls.

A third win for states’ rights, Soronen notes, was Murphy v. National Collegiate Athletic Association, a case that tasked the Supreme Court with determining the constitutionality of federal law prohibiting states from authorizing sports gambling.

Soronen says the final opinion, written by Justice Samuel Alito, is relevant to states as it allows them to authorize sports betting and establishes a legal precedent that extends to other aspects of the state-federal relationship.

But while Soronen identifies these cases as victories for state legislatures, she also points to verdicts that prove less than favorable, including Trump v. Hawaii, Masterpiece Cakeshop v. Colorado Civil Rights Commission and Gill v. Whitford.

In its 5-4 decision in Trump v. Hawaii, the Supreme Court sided with the Trump administration to ultimately uphold its recent travel ban. Soronen says a large portion of the oral arguments centered on the rhetoric of the Trump administration. “An anxious world waits to see how our officials do at holding up the Constitution and speaking in a manner that embodies its ideals,” the final sentence of the decision reads.

This makes the oath taken by government officials to uphold the Constitution “all the more serious, knowing that the Supreme Court can’t get involved in everything that they do,” according to Soronen. She deems the case a loss for Hawaii and other states challenging the travel ban, while ultimately protecting the “authority of the president to act in realm of immigration and national security.”

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the First Amendment rights of free speech and free exercise of religion were called into question, although Soronen says “the court made no ruling one way or the other about that issue.”

And in Gill v. Whitford, which dealt with partisan gerrymandering, the verdict was sent back to lower courts for procedural reasons. Ultimately, according to Soronen, “the big, clarifying decision people were hoping for, they didn’t get.”

The case, however, intersects with the vacancy of Justice Kennedy’s Supreme Court seat. Soronen says Kennedy had hinted that he would be interested in establishing a gerrymandering standard—something the Supreme Court failed to do during his term.

His vacancy leaves open questions with major ramifications for state legislatures. Historically a “swing Justice,” meaning his vote varied from case to case, Kennedy was the deciding vote in a number of cases.

“Over the past 12 years, we as Americans have put the big decisions that our country is facing in the hands of this one person—Justice Kennedy—and have asked him essentially to choose,” she says.

And as the federal government deliberates his replacement, Soronen says some state legislatures are bracing for change. “There isn’t an issue—whether you’re a state or otherwise—that Justice Kennedy didn’t touch,” she says, “and there’s hardly a position that Justice Kennedy had that was absolute.”

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.