Not your Gingrich’s Supreme Court
The Supreme Court rediscovers federalism just in time for 2012 election.
Posted Wednesday, Dec. 14, 2011, at 4:53 PM
Photograph by Chip Somodevilla/Getty Images.
They say you are always fighting the last war. Perhaps the one place where that’s not the case is at the Supreme Court, where the justices are suddenly poised to fight the next one. When the court announced this week that it would hear a major Texas voting rights case, then took on the dispute over whether four provisions of SB1070—the draconian Arizona immigration law —it positioned itself at the forefront on a new constitutional fight about federalism and states’ rights. Throw in the justices’ decision to determine the constitutionality of President Obama’s health care overhaul, and you are looking at a trifecta of cases that will put the court into the spotlight only weeks before the political conventions open this summer.
But it’s worth pointing out that while the nine members of the court have now been inserted (or found themselves injected) into an election year in ways we haven’t seen since the New Deal, it is not with the sort of hot-button issues that have made the court a political football for decades. Even though the GOP nominees will continue to rail against the elitist godless unelected social engineers at the high court, the pending cases raise none of their signature issues. That means that as we debate the role of the courts in America next November, instead of the stale culture war sound bites that have made the court a voting issue for the past 25 years, it will be the concerns of Occupy Wall Street and the Tea Party that frame the way Americans think and talk about the court.
Ever since the heyday of the Warren Court, the justices have been batting down accusations that they are unelected culture warriors, and so far this election cycle has been no different: With the exception of Mitt Romney, every major GOP presidential hopeful has attempted to make the Supreme Court an election issue with proposals ranging from simply canceling the 9th Circuit Court of Appeals to hauling federal judges before Congress to explain their legal rulings. Rick Perry made news last week for an impromptu rant against the “eight unelected judges” (plus one extra called Montemayor) who barred prayer in schools. In recent weeks, Newt Gingrich has announced that “on the issue of God and American public life, the courts have been historically wrong at least since the 1940s" and pledged to limit court jurisdiction to hear cases about public prayer. And Michele Bachmann has promised to provoke a constitutional crisis with the Supreme Court over abortion rights. This is all mostly just boilerplate, and strange to boot: Can’t the GOP candidates count their votes on the court? Conservatives have been campaigning against a wholly imaginary “liberal activist” Supreme Court for decades now. Suddenly, in light of the new cases, all that is irrelevant. The GOP nominees are fighting the last war while the court is already on to the next one.
Each of the three blockbuster cases the court has agreed to hear raises questions of federalism: Where does state authority end and federal power begin, and who allocates that division? The reason the Texas Legislature had to submit its redistricting plan to the courts (or the federal government) for review is because under the Voting Rights Act, Southern states with a history of racial discrimination must seek approval before enacting new election laws. The question for the court is whether local governments or the federal courts are better situated to assess new election rules. The central issue in the Arizona immigration case is that while the Constitution gives Congress the power to set a "uniform rule of naturalization," Arizona felt that the feds either wouldn’t or couldn’t create and enforce adequate immigration laws. Indeed Arizona Gov. Jan Brewer described this case as a dispute “about the fundamental principles of federalism under which every state has a right to defend its people." And of course the health care reform case is, in large part, about whether the federal government can require individuals to purchase health insurance; something state governments may do under their broader police powers. In sum, the court is hearing three political cases about the allocation of political powers at a moment in which Americans on both sides of the political spectrum have come to distrust government solutions to any problems.
These new states’ rights claims make the stalled-out federalism revolution of the Rehnquist Court era look like a cakewalk. Federalism questions have wracked the nation since the start of the Republic. They peaked during the Civil War and again during the civil rights era, but have always been with us. And not uncommonly, the courts have followed the public mood as to whether state or federal governments were best suited to solving various problems at different times.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.
Dahlia Lithwick writes about the courts and the law for Slate.