The Supreme Court’s Problem with “Leaving it to the State”

Writer: Joseph Pilcher

Editors: Kate Murphy, Bryce Presley, Steven Carredano Mendez

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I. Introduction

The Supreme Court of the United States was designed to be the final arbiter of constitutional questions, responsible for acting on state laws and human rights. Yet throughout American history, the Court has, at critical moments, deferred this responsibility to the tumultuous terrain of state politics. This pattern is known as judicial abdication or deference, which is meant to serve as a neutral act of constitutional restraint, has proven to be among the most destabilizing forces the American legal system can produce. When the Court refuses to speak with uniform federal authority on a question that touches on the basic conditions of human freedom, dignity, and personhood, it displaces the issue, deferring the conflict downward into fifty separate legislative chambers where it metastasizes to political institutions it should never be in.

This paper examines two landmark Supreme Court decisions, Dred Scott v. Sandford (1857) [6] and Dobbs v. Jackson Women's Health Organization (2022) [5], as parallel case studies to demonstrate the failures and dangers of judicial abdication. In Dred Scott v. Sandford, the Court's refusal to resolve the question of slavery's expansion did not quiet sectional tensions but instead hardened them beyond repair. The Court stripped Congress of its authority, denied Black Americans their fundamental humanity, and accelerated the nation toward secession and a Civil War [2][6][27]. Now, in Dobbs v. Jackson Women's Health Organization, the Court's dismantling of the federally recognized right to abortion, established under Roe v. Wade (1973) [20] and reaffirmed in Planned Parenthood v. Casey (1992) [19], has produced a fractured national landscape where reproductive rights vary dramatically by zip code, and healthcare infrastructure has collapsed under the redistributed burden of interstate medical travel. Drawing on historical precedents, constitutional doctrine, and empirical research, this paper will argue that judicial deference to the states on questions of fundamental rights is not a sustainable or constitutionally faithful methodology, as it is a structural failure with structural consequences.

II. Antebellum Period, Dred Scott v. Sandford

A. Kansas-Nebraska Act

The Kansas-Nebraska Act begins with Senator Stephen Douglas's proposal to organize the Kansas and Nebraska territories for westward settlement and railroad expansion. However, this required resolving whether slavery would be permitted in those lands [3][15][24][26]. The territories fell north of the 36°30′ parallel, the line established by the Missouri Compromise of 1820, meaning they were to be legally designated as free soil [3][24]. The legislative issue was whether Congress would honor that statute or allow the expansion of slavery to be decided by the settlers of each territory themselves, a concept Douglas called "popular sovereignty" [3][26]. Congress resolved the issue by passing the Kansas-Nebraska Act, effectively repealing the Missouri Compromise and leaving the question of slavery to the individual territories [15][24]. The reasoning behind the Act mirrored the logic that would later define Dred Scott v. Sandford two years later, that the federal government had no business imposing a uniform national answer on the question of slavery, and that local self-determination was the appropriate mechanism for resolution [2][3][6].

B. Dred Scott v. Sandford

Dred Scott, an enslaved Black man, had lived with his enslaver for several years while traveling in Illinois and the Wisconsin Territory, states that prohibited slavery under federal law. Thus, when he returned to the slave state of Missouri, Scott sued for his freedom, arguing that his prolonged residence in free territories had legally emancipated him [2][6][27]. The legal issue before the Supreme Court was twofold: first, whether Dred Scott, as a Black man, had the legal standing to bring a lawsuit in federal court; and second, whether Congress had the constitutional authority to prohibit slavery in the federal territories [6][7]. The Court held, in a seven-to-two decision authored by Chief Justice Roger Taney, that Black Americans, whether enslaved or free, were not citizens of the United States and therefore had no right to sue in federal court. Furthermore, the Court added that Congress had no power to ban slavery from the territories, rendering the Missouri Compromise unconstitutional [6][7][27]. The Court's reasoning was rooted in an originalist reading of the Constitution that treated Black people as property rather than people, holding that they were a subordinate class who had no rights [6][7]. Rather than settling the national crisis over slavery's expansion, the decision invalidated the primary federal compromise that was holding the nation together, hardening sectional divisions beyond repair. In this way, it accelerated the country's descent toward secession and the Civil War [2][6][27].

III. Modern Period, Dobbs v. Jackson Women's Health Organization

A. Roe v. Wade

A Texas woman who sought to terminate her pregnancy in 1969 was barred from doing so under Texas law, which criminalized abortion except to save the mother's life [23]. She challenged the law and the case ultimately reached the Supreme Court [23]. The legal issue before the Court was whether the Constitution protected a woman's right to terminate a pregnancy, and if so, how that right could be balanced against the state's interest in regulating abortion [23]. The Court held that the Due Process Clause of the Fourteenth Amendment encompassed a right to privacy broad enough to include a woman's decision to have an abortion, establishing a trimester framework that limited state interference in the first two trimesters of pregnancy [23]. The Court's reasoning rested on the principle that personal decisions of such intimate consequence fell within a constitutionally protected zone of liberty, and that the state's interest in regulating abortion did not become compelling until the point of fetal viability [23].

B. Dobbs v. Jackson Women's Health Organization

From a Mississippi law, the Gestational Age Act of 2018, banned nearly all abortions after fifteen weeks of pregnancy. It directly conflicted with the trimester standard established by Roe v. Wade and reaffirmed in Planned Parenthood v. Casey (1992) [23][22]. Jackson Women's Health Organization, the only licensed abortion facility in Mississippi, challenged the law [5]. The legal issue here was whether the Constitution still protected the right to pre-viability abortion, effectively asking the Court to revisit and potentially overturn fifty years of precedent [5]. The Court held that the Constitution confers no right to abortion, that Roe and Casey were wrongly decided, and that the authority to regulate abortion must be returned to the individual states [5]. The Court reasoned that abortion is not mentioned in the Constitution, is not deeply rooted in the nation's history and tradition, and therefore cannot be recognized as a fundamental right under the Fourteenth Amendment [5].

IV. Historical Precedent of Deference Regarding Slavery

When Congress passed the Kansas-Nebraska Act in 1854, it did not resolve the question of slavery’s expansion, rather, it tossed that responsibility to the territories through the doctrine of “popular sovereignty” [3][15][24][26]. The failure of that doctrine became immediately apparent in the Kansas territory, where pro-slavery and anti-slavery factions flooded the region to influence the territorial vote [3][24]. Fraud, intimidation, and political violence soon replaced democratic deliberation, culminating in a prolonged period of bloodshed known as Bleeding Kansas [3][24].

Rather than containing the national crisis over slavery, the Kansas-Nebraska Act intensified it, transforming the territories into battlegrounds [3][26]. At the same time, the Act shattered the already fragile national political order by forcing politicians and voters to align themselves according to sectional loyalties instead of national unity [2][3]. Though the Kansas-Nebraska Act created the conditions for crisis, Dred Scott v. Sandford constitutionally entrenched them [6]. Writing for the majority, Chief Justice Roger B. Taney held that Congress possessed no constitutional authority to prohibit slavery in the territories, effectively invalidating the Missouri Compromise and removing one of the last remaining federal barriers to slavery’s expansion [6][27]. Many Americans initially believed the decision would permanently settle the slavery question. Instead, it exacerbated sectional tensions, intensified political polarization, and strengthened the emerging anti-slavery movement [2][27].

Furthermore, the ruling of leaving slavery to the states, allowed it to become a central issue in the elections of 1858 and 1860, accelerating the rise of the Republican Party and polarizing the relatively new two-party system against one another on the issue of slavery expansion within the states [2][27]. Rather than resolving the national conflict, the Court eliminated the possibility of compromise by stripping away federal mechanisms capable of containing the crisis. In doing so, it helped ensure that the dispute over slavery would not be resolved through ordinary political processes, but through the violence of the American Civil War [2][27].

V. Current Situation of Deference Regarding Abortion

Another issue that stems from judicial abdication to states, now regarding the issue of abortion, is that of inconsistent access to proper medical care. As specific states place bans on abortion, others allow the practice in their region. This has led to many individuals who must undergo the procedure to travel out of their state to those that have these clinics [10][12]. Research over the past five years indicates an increase in interstate travel for abortion procedures [10][12][16]. This surge has fundamentally redistributed the burden of reproductive healthcare, concentrating it in the few states that allow abortion practice [10][12]. In the first half of 2023, Illinois received 18,870 out-of-state patients, New Mexico 8,200, and Kansas 6,200, all of which overwhelmed clinic capacity [10][12].

This has created longer wait times for all patients, and delayed care to the point that the proportion of abortions occurring at thirteen weeks or later than scheduled, has more than doubled [8][10]. In this way, by delegating abortion policy to the states, those that restrict or ban abortion place overwhelming pressure on the states and clinics that continue to provide these services, contributing to the structural collapse and regional imbalance of reproductive healthcare access [8][10]. This redistribution, further, helps explain why national abortion totals have not declined proportionally with the geographic scope of the bans. However, it is impossible to determine with certainty what abortion incidence would have been in the absence of these restrictions [13][14]. Total numbers, absent of the bans, may well have been higher, meaning the bans' suppressive effect cannot be entirely ruled out, only difficult to isolate and measure. What the available data do demonstrate clearly is that state-level abortion bans have not produced a commensurate reduction in total procedures, but reshaped the geography and delivery mechanisms of abortion care.

This redistribution has created economic consequences as well. A study published in the American Journal of Public Health, surveying over 800 individuals across fourteen states that implemented abortion bans between June 2022 and June 2024, found that the mean travel time increased from 2.8 hours when traveling in one’s state to 11.3 hours when traveling interstate [8][23]. Furthermore, travel costs more than doubled from $179 to $372, and overnight stays became necessary for the majority of travelers [8][23]. Women living in districts with long travel times to clinics create the financial burden of interstate travel, which either consumes a substantial share of their income or renders care entirely out of reach [8][22][23]. Meanwhile, the states receiving these patients have been afflicted by strains.

People traveling from the South often must cross multiple states to access in-person services [10][12]. This journey typically requires lodging, support, and a range of ancillary costs beyond the procedure itself, costs that fall not only on individuals but on the charitable organizations and abortion funds that support them [10][22]. When the cumulative economic toll of post-Dobbs v. Jackson Women's Health Organization abortion bans was calculated in full in a recent study, the figures are staggering. Travel to another state for in-clinic abortion procedures alone costs an estimated $104.7 million, making up thirty percent of the economic impact. Pregnancies carried to term as a result of denied access cost $233.2 million, representing nearly sixty-nine percent of the total impact, and pregnancies ending in miscarriage or stillbirth account for an additional $1.7 million [14][22]. Even accounting for an estimated $9.4 million in decreased costs attributable to the expanded use of telemedicine, following Dobbs v. Jackson Women's Health Organization, the net financial damage remains overwhelming [14].

Furthermore, by returning the question of abortion regulation to the states, the states have become increasingly socially divided. In the immediate aftermath of the Court’s formal ruling on June 24, 2022, widespread protests emerged across the United States. They continued in the following months, reflecting sustained public engagement on both sides of the issue [9][15][21]. These demonstrations included both pro-life and pro-choice mobilizations, underscoring the depth of disagreement across the country [9][15][21]. Public opinion data further reflects this polarization. A 2023 Ipsos poll found that approximately three in four Americans believed the United States had become more divided on abortion following the Dobbs v. Jackson Women's Health Organization [9][15][21]. This divide closely aligns with partisan affiliation as since 2022, about 84% of Democrats have supported legal abortion in all or most cases, while Republican support has remained significantly lower, with only 16% of Republicans in the study being pro-choice [9][15][21]. These political and attitudinal differences have been reflected in state-level policymaking. Republican-controlled states have enacted broad restrictions or bans, while Democratic-controlled states have expanded legal protections and access through shield laws and other measures [5][10]. The result is a highly uneven regulatory landscape in which access depends heavily on geographic location or political party. In this sense, the post-Dobbs legal framework has not resolved the underlying conflict over abortion policy, but has instead embedded it more firmly within state institutions, producing political disagreement without a unified national resolution.

VI. Identifying the Pattern

A. A House Divided

The history of the United States has never been kind to the proposition that a question of fundamental human rights can be safely delegated to the states and left to resolve itself. There is reason to believe that Dobbs v. Jackson Women's Health Organization has set the nation on a trajectory that parallels, with alarming precision, the one that followed Dred Scott v. Sandford. In the years after the Dred Scott v. Sandford decision, the issue of human rights regarding slavery drove moderates to extremes. It produced a political environment so polarized that the election of a single president was sufficient to trigger secession [2][6][27].

The nation was pushed into Civil War by the deference to the states that foreclosed every peaceful path to resolution and left two irreconcilable visions of America. The question that confronts the present moment is whether Dobbs v. Jackson Women's Health Organization has done the same thing or will likely go down the same path. The evidence is not comforting. State legislatures have responded to Dobbs v. Jackson Women's Health Organization with immediate and escalating entrenchment, with bans becoming total, penalties becoming criminal, enforcement reaching across state lines, and the political identity of entire states being staked to the outcome. Polling consistently reflects a nation not converging toward compromise but hardening into two camps that share not only different policies, but different frameworks and an increasingly diminished capacity for political coexistence. Just as Dred Scott v. Sandford transformed slavery from a legislative controversy into an existential confrontation, Dobbs v. Jackson Women's Health Organization has done the same with reproductive rights, converting a policy debate into a war over healthcare, bodily autonomy, and the meaning of freedom itself. The danger, as history has demonstrated once before, is that a nation fractured along a moral fault line this deep, with no institutional mechanism for resolution and no willingness on either side to yield, breaks down.

B. The Effect of Deference on Presidential Elections

The parallel becomes even more difficult to dismiss when one accounts for the electoral consequences that followed each act of judicial abdication. The Dred Scott v. Sandford decision was handed down in 1857, in the immediate aftermath of a presidential election and on the eve of another. Its radical foreclosure of federal authority over slavery directly fueled the rise of Abraham Lincoln and the Republican Party [2][27]. Lincoln's election in 1860 was itself so alarming to the slaveholding South that seven states seceded before he took the oath of office [27]. The Dobbs v. Jackson Women's Health Organization decision traces the same arc. Issued in 2022, it immediately entangled itself in electoral politics, radicalizing both parties and accelerating the parties to find a platform, ultimately contributing to the conditions that produced the election of Donald Trump in 2024 [5][9]. This electoral result has been met with a depth of controversy, protest, and institutional alarm, mainly from the Democratic Party or those aligned with leftist views [9].

Although the electoral candidates in both decades come from different political parties, both moments reveal a consistent and dangerous pattern. When the Supreme Court abdicates on a question of fundamental rights and surrenders it to the states, the states radicalize and inject polarization into the electoral process, demanding candidates who will represent their most extreme positions. From this, when a candidate wins, the radicalization of the issue creates resentment from the losing party, seeing that the abdicated issue is being solved by only one side. This is in no small part a product of the winner-takes-all architecture of American politics. It converts unresolved moral questions into zero-sum battles in which compromise is not a virtue but a surrender.  

VII. Constitutional Legitimacy of Deference

However, it would be intellectually incomplete to dismiss the doctrine of state autonomy entirely without acknowledging the constitutional framework and historical precedent that defends it. The Tenth Amendment to the Constitution explicitly reserves to the states all powers not delegated to the federal government, establishing state sovereignty as a foundational feature of American governance [4]. Under this framework, state-level policy is a deliberate feature that allows diverse populations with different values, needs, and circumstances to govern themselves accordingly without imposing a single uniform solution on the entirety of a heterogeneous nation [1][4].

Proponents of the Dobbs v. Jackson Women's Health Organization decision invoked this logic precisely, arguing that reproductive policy is exactly the kind of deeply contested moral and social question that the Constitution leaves to democratic deliberation at the state level rather than to federal judicial resolution [5]. This dynamic of state and federal power intersecting and overlapping in ways to promote the well-being of the people, defenders of federalism contend, Dobbs v. Jackson Women's Health Organization restored rather than ruptured [1][4][5].

Furthermore, there are documented instances in which state-level experimentation on contested social issues has successfully preceded and shaped federal consensus, rather than fracturing it. The interplay of state and federal decisions leading to the Supreme Court's declaring a federal constitutional right to same-sex marriage offers one such example of federalism at work, as federal and state courts and legislatures engaged in a prolonged dialogue that eventually resulted in the recognition of a national right [20]. However, while the theoretical merits of state autonomy and federalist experimentation have constitutional grounding, the empirical and historical record does not permit the luxury of theory. This is because the consequences of judicial abdication are measured by fractured political institutions and the long shadow of a Civil War that once before answered this nation's failure to protect fundamental rights at the federal level, thus the case for deference to the states collapses [2][5][27].

VIII. Conclusion

Within the American political landscape, a persistent tension exists between the competing branches and parties of government. The Supreme Court, as the ultimate interpreter of the Constitution, bears the responsibility of adjudicating the boundaries of rights and governmental authority. Yet the Court's historical pattern of deferring such determinations to the states has produced political fragmentation rather than resolution. When the Court declines to establish a definitive federal standard on a question of fundamental rights, the matter is destabilized, cycling through legislative policies and state governments without ever reaching a coherent national conclusion. This dynamic was acutely evident in Dred Scott v. Sandford, in which the question of slavery's territorial expansion was effectively deferred to the states, producing an irreconcilable sectional divide between abolitionist and pro-slavery factions.

The trajectory of reproductive rights following Dobbs v. Jackson Women's Health Organization reflects a strikingly similar pattern. Republican-controlled states have responded with sweeping bans, restrictions, and criminalization measures, while Democratic-controlled states have enacted shield laws and expanded access provisions. Whether the rupture produced by Dobbs v. Jackson Women’s Health Organization will manifest in open social conflict, as Dred Scott v. Sandford ultimately did, or some other equally consequential national disaster, remains uncertain. What history does make clear is that when the Supreme Court has previously abdicated its responsibility to resolve a question of fundamental human rights at the federal level, the consequences proved catastrophic, ultimately requiring armed conflict and three constitutional amendments to remediate.

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17. Kansas-Nebraska Act, ch. 59, 10 Stat. 277 (1854).

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