In a 1932 case, US Supreme Court Justice Louis D. Brandeis argued that the state of Oklahoma had the right to regulate companies selling ice, a vital commodity in the days before electric refrigerators were widely adopted.
States must have the power to reshape “our economic practices and institutions to meet changing social and economic needs,” he wrote in a dissenting opinion.
Under America’s federal system, “a single courageous state may, if its citizens choose, serve as a laboratory” and conduct “social and economic experiments without risk to the rest of the country.” Even though he was on the losing side, Brandeis’ opinion would be remembered for casting the states as “laboratories of democracy.”
Inherent in that view is the possibility some state experiments will go wrong; even wildly wrong, as many believe is happening today amid an intensifying culture war.
Red states are enacting measures restricting what can be taught in schools — with Florida’s “don’t say gay” law and Virginia’s executive order banning the teaching of critical race theory among them — and reducing access to voting in the wake of former President Donald Trump’s lies about widespread fraud in the 2020 election. And, last week, Oklahoma, Kentucky and Florida put in place new restrictions on abortion that appear to violate the landmark Supreme Court decision Roe v. Wade.
“In red states, it’s open season on women’s rights,” wrote Jill Filipovic. “Several Democratic-dominated states, on the other hand, are taking proactive steps to ensure abortion access. In Maryland, a new law means that trained medical professionals other than doctors will be able to legally perform abortions in the state.”
Four years before the Oklahoma ice decision, Justice Brandeis invoked the right to privacy in another dissenting opinion with long-lasting implications. Wiretapping someone’s phone without a warrant violates the Fourth Amendment, Brandeis contended. The framers of the Constitution “conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
The “right to be let alone” became the basis for the Supreme Court’s 1973 ruling in favor of abortion rights, which now is under assault.
In the Washington Post, Paul Waldman wrote “when the history of how American women lost their reproductive rights is written, the bill-signing that took place in Oklahoma City on Tuesday should be acknowledged as a key moment when the shrinking window of possibility that the Supreme Court might hold back from overturning Roe v. Wade essentially closed forever.” Gov. Kevin Stitt, a Republican, signed a “plainly unconstitutional bill” which outlaws almost all abortions.
“Faced with upholding or striking down a near-total ban such as Oklahoma’s, the court can’t take half-steps,” Waldman observed. “The justices can’t find refuge in debating the number of weeks into a pregnancy restrictions might be allowed, or whether some hoops states make women jump through are acceptable and others aren’t. They’ll have to decide on the fundamental question: Either women have a right to abortions, or they don’t. And the court’s conservative majority clearly thinks they don’t,” he argued.
“The reemergence of the culture war is downright chilling,” LZ Granderson wrote in the Los Angeles Times. “Florida Gov. Ron DeSantis may be hogging all the attention for starting the flood of so-called ‘Don’t Say Gay’ bills across the country (we’re up to 12 and counting), but don’t sleep on the ‘don’t read gay’ effort that’s been working in the shadows.” Granderson noted “the American Library Assn. tracked 729 book challenges in 2021 and found the ‘most targeted books were by or about Black or LGBTQIA+ persons.’ “
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