How much power do states have? Supreme Court holds the answer

After the dramatic eleventh hour confirmation of Brett Kavanaugh, many are wondering how this term will play out and speculating about the potential transformation of Supreme Court deliberations. The docket includes some important cases on arbitration, statutory interpretation, and cruel and unusual punishment, among other judicial topics.

Five pending matters pertaining to constitutional law, however, carry particularly important though not obvious implications. All of these cases ask the court to weigh in on the nature and limits of state power or the relationship between federal and state power. This theme suggests that the John Roberts court will continue to further the revolution begun by the William Rehnquist court in the 1990s. How the addition of Justice Kavanaugh will reshape the debate remains, however, to be seen.

{mosads}In Manhattan Community Access Corporation v. Dee Dee Halleck, the court will consider whether a public access cable channel run by a nonprofit can be thought of as a state actor and therefore subject to the First Amendment. This case has significant implications for free speech. If the court decides that although the Manhattan Community Access Corporation was created by the borough president to oversee public access cable channels, it is not a state actor then it will not be subject to First Amendment restrictions. That outcome could mean the loss of a potentially valuable media outlet to those with dissenting views.

The decision in this case will be equally important in guiding the various approaches to the privatization of public facilities and services. Many state governments over the years have resorted to private entities to administer programs that officials themselves would originally have undertaken. Hoping to offload costs and produce greater efficiency, state governments have privatized everything from prisons to water services to labor programs. If privatization allows for a shield against constitutional liability, citizens will not be able to vindicate their rights in any contexts where they could traditionally hold states to constitutional standards.

Another important case could extend the rights of federal criminal defendants to state criminal defendants. The Eighth Amendment prohibits the federal government from imposing excessive fines. This clause is one of the few provisions in the Bill of Rights that the court has not explicitly held applies against the states. An Indiana man whose $42,000 car was confiscated in relation to a drug offense carrying a vastly more limited maximum fine is arguing for the states to be bound by the clause in Tyson Timbs v. State of Indiana, scheduled to be heard later this month.

The theory under which federal constitutional rights are applied against the states has been hotly contested in recent years. Under either theory, incorporation seems likely, but this case should illuminate which theory Justice Kavanaugh subscribes to. Tyson Timbs v. State of Indiana is of substantive import as well because economic sanctions have taken an outsized role for financially vulnerable defendants in recent years.

The relationship between federal and state criminal law is also the subject of Terance Gamble v. United States, schedule to be heard next month. Currently, a person can be charged with both a federal and state crime for the same underlying offense despite the double jeopardy clause. This anomaly stems from the dual sovereignty doctrine, which as one amicus brief in the case persuasively argues, was made up in the 19th century.

The court is considering setting aside the dual sovereignty doctrine in this case. There may, however, be political implications if it does. After Senator Orrin Hatch filed a brief urging the court to do away with overlapping federal and state prosecutions, some speculated that such an outcome would be to the advantage of President Trump, depending on what the special counsel investigation unearths about his campaign.

If the decision here might restrain what states can do in the criminal realm, two other cases would allow the court to expand the autonomy of states. Franchise Tax Board of California v. Gilbert Hyatt, presents the possibility of overruling an earlier case that permitted states to be sued in the courts of other states. This precedent has remained standing despite a series of later decisions putting forth a broad view of state sovereign immunity from suit by individuals both in state and federal court.

Tennessee Wine and Spirits Retailer Association v. Clayton Byrd is the other case that could be a vehicle for asserting a broader state power to regulate alcohol under the 21st Amendment in the face of a residency requirement that would otherwise violate the commerce clause. The court just last term opined that the commerce clause could not prevent the states from exercising their lawful sovereign powers. The workings of this key case could thus press the court further in a similar direction.

Together, there is a risk in all these cases that the court will insist on states having immunity from suit in the courts of other states as well as lack of constitutional responsibility of states for acts taken by private entities to which they have outsourced various functions. At the same time, there remains the very real potential for granting criminal defendants greater constitutional rights at the state level, along with implementing a more coherent and consistent doctrine of double jeopardy across federal and state forums. States may praise the court for some of these decisions, but they will probably lament new restrictions on criminal law strategies.

Bernadette Meyler is professor and associate dean at Stanford Law School.