Stephen M. Griffin (Tulane University Law School) has posted The Supreme Court’s New Map of Federalism, 53 UC Law Constitutional Quarterly 518 (2026), on SSRN. Here is the abstract:
Is the United States truly one nation? Or two? Or perhaps three? We should take such questions seriously in light of the new map the Supreme Court is creating with “our federalism.” In this essay, I argue that the Supreme Court is steadily creating a new reality for American federalism by allowing states to opt-out of key national programs. From a descriptive perspective, this essay provides the first account of a significant constitutional change which has crept up on us without warning. From a normative perspective, the essay highlights how the Court has rekindled a connection to the nation’s tragic racial past.
My attention was initially drawn to this phenomenon by the Affordable Care Act (ACA) case, NFIB v. Sebelius. The Court’s Medicaid “option” created a new health care distribution reality for the nation as a whole but with specific, hard-hitting consequences for the South – a region with a long record of health care challenges, many of them linked to race. Similar disturbing sectional consequences flowed from Shelby County v. Holder, striking down the Voting Rights Act’s formula for preclearance of state election laws, and Dobbs v. Jackson Women’s Health Organization, the decision that reversed Roe v. Wade. Using maps to illustrate my points, I identify seven “overlap” states characterized by all three policies – no Medicaid expansion, voter suppression, and abortion bans. Roughly 81 million Americans live in these states. Thanks to the Supreme Court, where you live and work will determine going forward what constitutional and legal rights you have, your health, and how you experience American democracy.
These decisions foreground the issue of the relationship between race and the doctrine of federalism. An inquiry into this issue is long overdue. Consider, for example, that all the original states of the Confederacy quickly decided to take advantage of Sebelius by refusing the Medicaid expansion. They are also the states that are responsible for enacting voter suppression regimes after Shelby County. And most of them banned abortions after Dobbs. All of these policies have demonstrably negative consequences for minority groups, especially African-Americans.
The essay proceeds in three steps. Part I first introduces the new sectional reality the Court is creating as a result of Sebelius, Shelby County, and Dobbs through a series of maps. I provide a detailed assessment of each opinion and its impact on American federalism. I also introduce the theme of a reawakened racial past. This new sectional and racial reality should prompt us to ask the same question the justices have been raising for some time: is the South different? In Part II, I explain why my answer is yes. Finally, I discuss the normative implications of my analysis in Part III.
Highly recommended!
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