A unique defense of Federalism, making the case that constitutional law in America--encompassing the systems of all 51 governments--should have a role in assessing the right balance of power among all branches of our state and federal governments. Everything in law and politics, including individual rights, comes back to divisions of power and the evergreen question: Who decides? Who wins the disputes of the day often turns on who decides them. And our acceptance of the resolution of those disputes often turns on who the decision maker is-because it reveals who governs us. In Who Decides , the influential US Appellate Court Judge Jeffrey S. Sutton focuses on the constitutional structure of the American states to answer the question of who should decide the key questions of public policy today. By concentrating on the role of governmental structure in shaping power across the 50 American states, Sutton develops a powerful explanation of American constitutional law, in all of its variety, as opposed to just federal constitutional law. As in his earlier book, 51 Imperfect Solutions , which looked at how American federalism allowed the states to serve as laboratories of innovation for protecting individual liberty and property rights, Sutton compares state-level governments with the federal government and draws numerous insights from the comparisons. Instead of focusing on individual rights, however, he focuses on structure, while continuing to develop some of the core themes of his previous book. An illuminating and essential sequel to his earlier work on the nature of American federalism, Who Decides makes the case that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in assessing the right balance of power among all branches of government. Taken together, both books reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has the answers to our vexing constitutional questions.

Recommended on 1 episode:

A Guide to the Supreme Court's Rightward Shift

In the past few weeks alone, the Supreme Court has delivered a firestorm of conservative legal victories. States now have far less leeway to restrict gun permits. The right to abortion is no longer constitutionally protected. The Environmental Protection Agency has been kneecapped in its ability to regulate carbon emissions, and by extension, all executive branch agencies will see their power significantly diminished. But to focus only on this particular Supreme Court term is to miss the bigger picture: In the past few decades, conservative court majorities have dragged this country’s laws to the right on almost every issue imaginable. Shelby County v. Holder gutted the Voting Rights Act and opened the door for states to pass restrictive voting laws. Rucho v. Common Cause limited the court’s ability to curb partisan gerrymandering. Citizens United v. Federal Election Commission unleashed a torrent of campaign spending. Janus v. AFSCME Council 31 weakened unions. A whole slew of cases, including some decided on the shadow docket during the Covid-19 pandemic, undercut federal agencies’ power to help govern in an era of congressional gridlock. And that’s only a partial list. Kate Shaw is a law professor at Cardozo School of Law, a co-host of the legal podcast Strict Scrutiny and a former clerk for Justice John Paul Stevens. In this episode, she walks me through the most significant Supreme Court cases over the past 20 years, from the court’s decision to hand George W. Bush the presidency in 2000, to the dismantling of the Voting Rights Act, to the assertion of an individual’s right to bear arms. Along the way, we discuss the right’s decades-long effort to transform American law from the bench, how Republican-appointed judges have consistently entrenched Republican political power, the interpretive bankruptcy of constitutional originalism, how the Warren Court radicalized the conservative legal movement, what might happen to decisions like Obergefell v. Hodges now that the court majority seems to be so comfortable throwing out precedent, what cases to watch in the Roberts Court’s next term, and more.

Books recommended:

• 📕  The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having―or Being Denied―an Abortion by Diana Greene Foster Ph.D
• 📘  Torn Apart: How the Child Welfare System Destroys Black Families--and How Abolition Can Build a Safer World by Dorothy Roberts
• 📗  Who Decides?: States as Laboratories of Constitutional Experimentation by Jeffrey S. Sutton
• 📙  51 Imperfect Solutions: States and the Making of American Constitutional Law by Judge Jeffrey S. Sutton

Kate Shaw July 1, 2022 4 books recommended

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