The State of American Federalism 2021–2022: Federal Courts, State Legislatures, and the Conservative Turn in the Law

Abstract

Contemporary American politics features intense political polarization and closely contested battles over the direction of public policy. Conservatives and liberals alike have used the many venues in the American federal system to try to gain an advantage. In this article, we suggest that a key feature of contemporary American federalism is the institutional advantage that conservatives have achieved due to recent shifts in the ideological conservatism of the federal judiciary and growing Republican dominance in state legislatures. We assess the consequences of these developments, focusing on efforts to weaken federal administrative agencies’ authority and discretion, challenge individual voting rights and institutional control over elections, expand conservative approaches to personal liberties in areas such as abortion, religious practice, and gun rights, and to preempt local policy authority. These developments have the effect of consolidating authority in the hands of Republican-controlled state governments and in some cases bringing about national-level policy changes via state initiatives, and with important implications for American society, politics, and federalism.