As the Senate debates the confirmation of Brett Kavanaugh, one thing’s certain: Montana will see the effects as President Donald Trump’s nominees make the Supreme Court more conservative.
President Trump is delivering on his promise of a more conservative Supreme Court. What that means according to Montanans both pleased and displeased with Trump’s judicial picks, is a likely pull-back on federal power, leaving it to states to call their own shots on everything from birth control to clean water to the management of endangered species. The list goes on.
“If you end up with a more conservative court, a more Constitutional-based court, I think you would see more tendency to give power back to the states,” said Cary Smith, majority whip of Montana’s Republican-controlled senate.
The balance of state and federal power is a big concern for conservatives, who object to many of the federal laws universally imposed on states. Whether it’s requirements that sage grouse be protected as an endangered species or the banning of grizzly bear hunts, federal regulations rub conservatives the wrong way. The rationale is that local government, even state government, is better than federal government.
As Kavanaugh’s confirmation process started, conservatives began entertaining life with less federal influence. Smith said a more conservative court would likely be more inclined to back President Trump on issues like restrictions for transgender Americans, which the president took up earlier this year by signing a ban on transgender people serving in the military. A federal district court overturned the ban in August.
There have been repeated attempts at the state level to regulate abortion, including requiring women to have an ultrasound, complete with a waiting period, before proceeding to an abortion. “Personhood amendments,” passed by state legislators, giving embryos the same rights as people, have also been shut down. A Supreme Court that empowered states might give them more freedom to address abortion and other health issues, including contraception insurance.
Women’s health care advocates are concerned about giving states more control of women’s health. Martha Stahl, of Planned Parenthood Advocates of Montana, said this week Kavanaugh on the Supreme Court would be horrible for women’s health, and not only because there are questions about whether the critical abortion rights ruling in Roe v. Wade would survive.
“While we often think about this in terms of Roe, we need to also be thinking more broadly about health care,” Stahl said. “We’re looking at the future of the Affordable Care Act, and the coverage of pre-existing conditions, for example, that’s going to be something the courts can look at. Lots of people will be affected by that.”
Environmentalists are also eyeing public health, in the context of what clean air and clean water regulations might resemble if left up to states, without a broad set of universal rules from the federal government.
Federal rules like the Clean Water Act and the Clean Air Act have established a baseline, a bare minimum that states must do to keep water and air clean, said Anne Hedges, of the Montana Environmental Information Center. At MEIC, attorneys have taken the state of Montana to court more than once for failing to uphold federal law governing air and water pollution and protecting public health. The concern is that without that federal backstop states will allow pollution violations to sail across the plate unchallenged.
“States have had the right to regulate coal ash pollution. They have the right to regulate mercury air toxics. States haven’t done so. They have proven to be too close to the industries they were regulating,” Hedges said. “You need a federal floor to hold states accountable.”
In the years before the Clean Water Act, states did regulate clean water, and the results weren’t good. In 1969, the Cuyahoga River caught fire in Northern Ohio. That incident and others set the backdrop for the passage of the Clean Water Act in 1972.
Not everyone agrees that states would do less if they were more empowered by the Supreme Court. Alan Olson of the Montana Petroleum Association said in the past when the federal government regulated environmental matters in Montana with no state help, there was less regulation simply because the federal government never provided the staff needed to do field work.
“We do not support polluting the environment," Olson said. "There’s some issues with the Clean Water Act that we might take issue with. At the same time we have faith in state regulatory agencies. They’re the people close to the ground. They know what’s going on. They have people in the oil field.”
A more conservative Supreme Court might change the way judges use the “Chevron doctrine,” which basically allows federal agencies, when laws are vaguely written, to make their own definitions, which the court then follows, assuming the agencies' interpretations are reasonable. The practice gives more power to government employees than industries are comfortable with. If Kavanaugh produced the vote to put an end to the Chevron doctrine, that would be good thing, Olson said.
“We’d just like to see consistency. We’d like to see recognition of property rights. That’s what we’re asking for here,” Olson said.