America’s Looming Conflict: Red Judges vs. Blue Governors

In other times, Gov. J.B. Pritzker might have batted away my question as a contrived provocation.

But the Illinois Democrat was far from dismissive last week when I asked him whether he could imagine a scenario where a federal judge issued a ruling so wildly wrongheaded that Pritzker would decline to enforce it in his state.

“That’s not something that I anticipate having to do and that’s not something I would want to do,” Pritzker said. “I believe in the rule of the law and I believe in our Constitution.”

He added a note of grim realism: “And I know there are misinterpretations of our Constitution. We’ve all lived with that.”

It was a calibrated answer, indicating distaste for my hypothetical without completely ruling it out. And at this point, how could he — or any Democratic governor — foreclose the possibility that a rogue judge might precipitate that kind of clash?

Pritzker, 58, made plain in our conversation that he is not looking for war with the federal judiciary. Yet in many respects war has come to him and other blue state governors, as a cohort of conservative legal activists on the federal bench flex their new power with rulings that strain constitutional credibility.

Their decisions are attacking the blue state way of life: Stripping back gun regulations, threatening abortion rights and weakening federal policies on environmental regulation and civil rights that align with the values of America’s center-left cities and suburbs. Those communities make up much of the country, but their political power is concentrated in a relatively small number of densely developed states.

It does not seem far-fetched to imagine that the leader of one of those states, with a population and economy the scale of a midsize nation, might eventually say: Enough. 

I asked to speak with Pritzker after a Texas-based district court judge, Matthew Kacsmaryk, issued a ruling halting the Food and Drug Administration’s approval of mifepristone, a drug used to terminate pregnancy. It was a brazen ideological decision by a judge with a record of espousing far-right views.

Several politicians have called for the mifepristone ruling to be ignored, though none are governors. Sen. Ron Wyden (D-Ore.) denounced it as the fruit of “conservatives’ dangerous and undemocratic takeover of our country’s institutions”; he and Rep. Alexandria Ocasio-Cortez (D-N.Y.) urged the Biden administration not to enforce the decision, which has largely been stayed so far.

Rep. Nancy Mace, a South Carolina Republican, endorsed the same idea, saying that there was “no basis” for the ruling and warning her party that it was on the wrong side of the country on abortion.

Should higher courts allow the decision to take effect, it would represent a drastic escalation of the judicial rollback of abortion rights. It would go beyond the Supreme Court’s Dobbs v. Jackson Women's Health Organization decision, which abolished the federal right to abortion, by hindering access to abortion even in states where the procedure is legal.

Pritzker responded by declaring that the ruling had no force in Illinois. That was a statement of legal reality, however, rather than the declaration of a constitutional crisis.

Illinois is involved in separate federal litigation in Washington state, where the state attorney general, Bob Ferguson, is suing to loosen FDA restrictions on mifepristone. The suit was devised in part as a tool for countering the Texas case: Ferguson told NPR earlier this year that it could help shield states like his from the immediate impact of an extreme ruling in Texas.

That tactic worked. When the Texas decision came down, the judge in Washington ruled that the availability of mifepristone could not be restricted in the coalition of states suing to loosen access.

This is a chaotic state of affairs that tests the coherence of the federal system. It is likely to get worse in the future, as the gulf in values widens between the majority of voters who favor abortion rights, gun control and other center-left policies, and an elite faction of judges who do not.

In our conversation, Pritzker called this a crisis inflicted by former President Donald Trump, whose judicial appointees “are just finding any which way they can to effectuate their policies rather than follow the law.”

The solution, Pritzker argued, was for Democrats to “appoint rational judges” and gradually grind away the impact of Trump’s appointments. For now, he said states like his should explore every legal tactic imaginable to protect themselves from reckless judicial fiats.

The Washington state litigation on mifepristone was one such tool. When far-right groups file lawsuits before conservative-leaning courts with an eye toward changing national policy, blue states can launch competing litigation on the same subjects to engineer legal deadlock.

That could be a frenzied process just to preserve elements of the status quo.

“We’re all going to have to live with the craziness that is the leftover effect of Donald Trump being in office for four years,” Pritzker conceded.

I told him I wasn’t sure people in a state like his were prepared to live with “the craziness” indefinitely. Democrats cannot restore the pre-Trump texture of the judiciary without winning a bunch of presidential and Senate elections in a row and then hoping for some well-timed judicial vacancies, particularly on the Supreme Court.

Pritzker initially thought I was suggesting voters would grow dejected and stop turning out to support Democrats. Quite the opposite, I clarified — I think voters will get volcanically angry.

“I think that’s what people are doing,” he agreed, “and their reaction is at the ballot box and their reaction is in the streets.”

Pritzker cited an election this month for control of the Wisconsin Supreme Court: In a “50-50 state,” the liberal-leaning candidate won by a landslide in a campaign in that hinged in part on abortion.

There are democratic correctives to an out-of-control judiciary, in other words, short of an all-out battle against the bench. It is possible that the task of winning several consecutive national elections for the Democratic Party, and overhauling the judiciary in the process, may not be an unappealing challenge for Pritzker, who is widely seen as a future presidential candidate.

Yet there is still the problem of the present.

In many instances, like the mifepristone case, blue states will have legal backup options to try before a governor would have to yield to an extreme district judge. But counting on relief from higher courts is hardly a satisfying strategy for Blue America, under the circumstances.

The moment may come sooner or later when a strong-willed governor in a major blue state will run out of stays and appeals and injunctions and be left to implement an intolerable, ideological decision in a state with contrary social values and political priorities.

The voters of that state will probably view the judiciary with distrust or worse if current polling trends hold. They will probably see the decision — it could be on abortion or LGBTQ rights or voting rights or guns — as an act of radicalism by distant figures in black robes.

Within living memory, there were governors who responded to conditions very much like that by siding with the voters, defying the courts and insisting that their decisions could not be put into effect. They were not blue state progressives but Southern racists; they managed to obstruct desegregation for years and shape the course of American racial politics to this day.

It is not too hard to conjure the mental image of a 21st Century, blue state George Wallace, standing in the schoolhouse door to defend an entirely different set of social values.

Consider the Supreme Court decision last year voiding a New York gun regulation, in force since 1911, that required people to show “proper cause” for seeking to carry handguns outside the home in order to obtain a license to do so.

Let’s say that ruling had come down when the governor of New York was not Kathy Hochul, a conventional Democrat, but rather a politician with more rigid convictions and an appetite for risk and combat — someone who has already expressed support for ignoring certain kinds of judicial rulings, like a Gov. Ocasio-Cortez.

Let’s say that when the Supreme Court ruled that a century-old handgun restriction was suddenly unconstitutional, that governor responded: The court’s analysis is noted, but our local gun laws are deeply rooted and it would not be practical to change the way we do licensing at this time.

What would happen then?

Would the president nationalize New York’s firearm licensing bureaucracy? Or threaten the governor with arrest? Or send in federal forces, like Eisenhower deploying the 101st Airborne to help desegregate Arkansas public schools?

The answer might depend on which party controls the White House, a political reality that speaks to how frayed the constitutional order already is.

A Republican administration might seek swift punishment for Gov. Ocasio-Cortez. Would a Justice Department overseen by President Biden or President Harris — or President Pritzker — do the same?

If not, what then?