The Supreme Court Takes Aim at California’s Right to Clean Air
The cases that Roberts cites make clear that their concern with “equal sovereignty” is solely reserved for the admission process. Roberts himself apparently ignored these admonitions. At one point in Shelby County, for example, he quoted the Oklahoma case from 1911 to note that the United States “was and is a union of states, equal in power, dignity and authority.” He left out the rest of what Justice Horace Lurton wrote immediately after that, which made clear its limited scope: “To maintain otherwise would be to say that the Union, through the power of Congress to admit new states, might come to be a union of states unequal in power, as including states whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.”
In her dissent in Shelby County, Justice Ruth Bader Ginsburg warned against the majority’s misapplication of the equal sovereignty doctrine. “Today’s unprecedented extension of the equal sovereignty principle outside its proper domain—the admission of new states—is capable of much mischief,” she wrote. “Federal statutes that treat States disparately are hardly novelties. Do such provisions remain safe given the Court’s expansion of equal sovereignty’s sway?” She cited multiple cases in which states are treated differently from one another by federal laws, often without controversy.
Invoking the doctrine in the Voting Rights Act cases drew sharp critiques from legal scholars as well. Leah Litman, a University of Michigan law professor, wrote in a 2016 law-review article that the “principle of state equality” articulated in Shelby County had “little basis in constitutional text or drafting history, and these sources also do not specify the contours of the state equality principle.” She also noted that “the idea that federal laws cannot constitutionally specifically identify particular states or result in differential effects on different states potentially conflicts with other principles that are embodied in the Constitution’s structure, longstanding congressional practice, and judicial precedent.”
