State Fault Lines That Might Lead to Big Cases Before the Supreme Court

The Court currently has 43 arguments scheduled for this term.  For the most part, these cases will go under the radar. Even cases with large sets of amicus briefs, usually a good sign of generalized interest in cases, do not contain the same blockbuster quality as cases in recent terms.  For example, amici filed nearly 30 merits briefs in the case Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The case deals with the scope of the Endangered Species Act. While an important topic, this appeals to a narrow sector of the population. Cases like Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission from last term not only generate a greater number of amicus filings, but also potentially affect a wider portion of the population (although as it turns out the scope of the Masterpiece Cakeshop decision was relatively narrow).

This leads to the logical question of what might inspire the Court’s next set of blockbuster cases.  This past week we saw the federal government make a move that might ignite tension across the nation when news surfaced that the Trump Administration was looking to focus the language of Title IX on a binary definition of sex as either male or female based on the “genitals that a person is born with.” This refined definition is already drawing backlash from large portions of the public while it is downplayed by others.

Such an interpretation of Title IX could very well lead states to refine laws based on such a definition, and in turn is a potential path to litigation on Equal Protection grounds.  While the federal impetus would clearly motivate state action, an actual decree at the state or local level would likely catalyze any response.  In practice, states’ laws in areas of civil liberties have led to many of the most well-known cases over the past several decades with issues ranging from same-sex marriages in Obergefell v. Hodges to affirmative action in Fisher v. University of Texas at Austin.

Below are eight issues with laws that significantly vary at that state level and which affect large swaths of the population.  These issues and the state laws in question are potential sparks for litigation in hot-button areas that might very well reach the Supreme Court.  Most of these issues have already fostered litigation in the Court in recent years and due to states changing laws and policies, might find their ways back to the Court sooner rather than later.  The issues examined below include: abortion, the death penalty, employment discrimination on the basis of sexual orientation and gender identity, gun carrying rights, state policies on immigration, marijuana laws, voter ID policies, and laws respecting religious freedom.

There is only one dimension of an area of law examined for each issue. This means for example that while gun carrying laws are examined, laws regarding gun ownership are not.  This might skew the picture a bit by area but also controls for how courts may differentially  analyze similar issues across states.  States’ policies in these areas were each scaled from 0 to 3.5 (when applicable due to sufficient gradations in state laws) with zero relating to a liberal approach and 3.5 equating to a more conservative policy.


The current standard on abortion is derived from the 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which looks at whether an abortion regulation places an “undue burden” on a woman’s right to choose to have an abortion.  The checkerboard of states’ approaches on abortion range from defining a specific timeline within which abortions are legal to more open-ended standards.

Information from the Guttmacher Institute helped to delineate state level abortion policies focusing on the timeframes when abortions are permissible.  One area of ambiguity in states laws, however, derives from the fact that many states’ policies are predicated on viability of the fetus and yet there is little consensus on when a fetus is actually viable.  Some of the clearly more liberal policies like that in Rhode Island use a 24-week marker as the deadline.  In Virginia’s case the threshold is extended until the third trimester while other states like Mississippi set the threshold to 20 weeks.  Not long ago legislators in Mississippi tried to pass a law that prohibited abortions after 15 weeks but a federal judge blocked this law from going into effect.  Still, multiple states have bills pending that might curtail the availability of abortions including a potential ban on abortions in Louisiana after 15 weeks and an abortion ban in Iowa after a fetal heartbeat is detected.  As state laws that use viability as the threshold for abortion run the gamut in practice from quite strict to relatively loose these were coded as conservative based on the theoretic possibility that they can be used to justify banning abortions at early stages in a pregnancy.

The map of state policies based on the Guttmacher Institute’s coding is as follows:


Voter ID

Voter ID requirements vary considerably across states as well.  The Court held in Crawford v. Marion County that an Indiana law requiring photo IDs at polling stations was constitutional.  Now laws range from not requiring identification on the liberal end to requiring photo IDs on the more restrictive edge of the spectrum. Many other bills on this issue are currently percolating within state legislaturesData on Voter ID laws was retrieved from the National Conference of State Legislatures (NCSL) website.



Death Penalty

State death penalty laws frequently lead to litigation and oftentimes this litigation makes its way to the Supreme Court.  As recently as its 2015 term, the Court held Florida’s capital sentencing scheme unconstitutional in Hurst v. Florida. The Court has two death penalty related cases this term with Bucklew v. Precythe and Madison v. Alabama though neither looks at a state’s overall death penalty policy.  State laws now range from abolishing the death penalty to using multiple methods for executions.  Data from the NCSL and from Findlaw was pooled to generate the map on death penalty policies.


Employment Discrimination Based on Gender Identity and Sexual Orientation

There is no universal standard for states’ policies on employment discrimination based on gender identity and sexual orientation.  This is an issue not often confronted by the Supreme Court but one that could very well arise in the near future.  The Court recently dealt with employment discrimination based on gender in Young v. UPS and almost heard a case regarding a dispute on transgender use of bathrooms in Virginia schools in Gloucester v. G.G. before the Trump Administration changed the direction of the federal policy in this area.  State laws ranging from least to most protective as identified by the Human Rights Campaign are as follows:



Gun laws are another area that split the states. While states have a variety of laws that regulate gun ownership and use, the focal laws for this analysis deal with the settings where individuals can lawfully carry guns within the state.  The Court upheld the right to gun possession in District of Columbia v. Heller and reaffirmed this right in McDonald v. City of Chicago.  State laws now vary from freely permitting the open carry of guns to prohibiting open carry altogether. Several states are also currently looking to broaden their gun carrying policies.  State gun laws were identified based on coding from the Giffords Law Center.



Another area where states get involved in a variety of fashion is defining law enforcement’s involvement in pursuing and handling undocumented immigrants.  The Court examined this issue in Arizona v. United States when it held Arizona’s policy of allowing police to search for undocumented immigrants without warrants unconstitutional. States’ policies now range from requiring law enforcement to verify the immigration status of detainees and report undocumented immigrants to federal immigration authorities to leaving these matters entirely to federal authorities.  Information on immigration enforcement laws was obtained through the NCSL and Findlaw.


Religious Liberty

The intensely followed issue of when religious liberty is pit against discriminatory practices will almost assuredly end up once again before the Supreme Court. The Court held in favor of a company’s religious liberty in Burwell v. Hobby Lobby Stores, and later held for the religious rights of a baker over those of a same-sex couple seeking a wedding cake in last term’s Masterpiece Cakeshop. Multiple states have Religious Freedom Restoration Act (RFRA) laws in place that protect religious liberty under a strict scrutiny standard.  Some none RFRA states still protect this type of religious liberty through court decisions while others have no such laws in place.  Information on religious liberty laws was obtained through the NCSL and Findlaw.


Marijuana Laws

Marijuana legalization is another issue that may come before the Supreme Court in the near future, especially if Congress does not legislate on the topic and states continue to vary in their practices.  States range from allowing marijuana in very limited instances to legalizing marijuana for recreational use.  This not only leads to disparate practices across states but also to traffic of marijuana between states with different levels of marijuana prohibitions.  Information on marijuana laws and restrictions was obtained through the NCSL.



The scores in the eight areas were aggregated to create an overall index that runs from more liberal to more conservative.  The ideological difference in state policies across these issue areas is shown below.


The lines above show the ideological valence of a states’ laws and not the likelihood that a state law will be challenged.  Laws on both sides of the spectrum may be challenged depending on when rights are curtailed so that restrictive, liberal gun laws may be challenged but so may restrictive abortion laws even though one equates to a more liberal policy and the other to a more conservative policy.

While the justices ultimately control their docket and may choose (or not choose) to hear cases in any of these areas, these are some of the areas where states have major distinctions between their laws.  Attacks on state laws in these areas could well lead to litigation that reaches the upper echelons of U.S. Courts and due to the Supreme Court’s predilection towards cases that split courts across the country, cases in these areas may well spur some of the next great battles before the justices.

On Twitter @AdamSFeldman; Running data related projects for lawyers @ Optimized Legal

17 Comments Add yours

  1. Lee Gabor says:

    Excellent article, thank you.

    Liked by 1 person

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