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.
When the Rehnquist Court flexed its own states rights muscles, the legal and ideological left went nuts over the court’s supposed radicalism, but most of these cases were peanuts compared to what’s on the table now. United States v. Lopez said the federal government couldn’t ban possession of guns near schools. Guess what? The federal government wasn’t really doing anything about guns near schools, most states had their own laws, and adding a federal crime stood in the way of letting states address the problem their own way. United States v. Morrison said Congress could not make violence against women a federal crime. Guess what? This legislation, too, was largely symbolic (federal cases were nearly nonexistent); symbols matter of course, but still this sort of violence fell squarely at the heart of what states do on a daily basis. And those 11th Amendment decisions—you’ll be excused if you don’t remember them or couldn’t figure out what the hell they were about anyway—raised questions about the ability to enforce federal law against states, but states had been immune from money damages in private federal lawsuits for years. Besides, nothing kept the federal government from going after the states itself. When, in South Dakota v. Dole, the court had a real issue in front of it, a doozy of an issue—can the federal government get states to do its bidding by using money as a hook—the Fearsome Federalism Five (excepting Justice Sandra Day O’Connor) crumbled like a stale cookie.
Compared with the federalism issues once faced by the Rehnquist Court, this stuff coming down the pike now is serious business. When the court agreed to weigh in on redistricting, immigration and health care, it announced that the new national obsession with how government works, and which level of government is best suited to address what problems, will be fought out in the highest court, as well as on the streets. But oh what a fight it will be. Unlike the symbolic laws of the 1980s and 1990s, this stuff matters hugely to people’s everyday lives: Will we have national health care? Can states pick and choose who will be subject to law enforcement and tossed out of the country? Will courts draw election districts or the state legislature—especially when real seats in the House of Representatives are at stake?
Complicating matters, federalism cases have always made for fickle friends. They put people in an awkward spot: Either choose some rule regarding state (versus federal) power and apply it no matter what issue is at stake, or pick an outcome you like on any given issue, then assign governmental power. The former looks principled but creates dissonant outcomes; the latter makes federalism look like a dog’s breakfast. This problem became clear during the failed Rehnquist federalism revolution when the choice was between states’ rights or drugs. California legalized medical marijuana. John Ashcroft said no way. If one took the rhetoric of the federalism revolution seriously, this was an easy case: Why shouldn’t California get to choose its own drug policy? But Fearsome Federalism Five’s charter members Antonin Scalia and Anthony Kennedy hopped off the ship of state’s rights very quickly when toking pot was the issue. Sic transit federalism.
The new states rights cases are bound to trip over the culture war in ways that make things messy both for the justices and for those—like the gaggle of GOP candidates—who will be quick to judge them. You’re a states’ righter, you say? Great, let’s wipe out Obamacare, permit Arizona do whatever it wants with people who look Hispanic, and allow Texas to elect whomever it wants without federal court supervision. Um, but if the federal government can’t regulate a multibillion dollar economy in health care and health insurance, why should it get to adopt the Defense of Marriage Act? If states get to decide how to treat their residents, why can’t they opt for gay marriage?
The Roberts Court has barely begun to be a “court” at all, if doing so means standing up for some set of clear principles. It’s been generally pro-business, and campaign finance has been contentious, but by and large things have been quiet (unless you are a criminal defendant—and then you really are taking it on the chin). The remainder of this term may prove defining. We will certainly get to see, in the coming months, whether, as Charles Pierce suggested, “this particular court's majority would like to leave a permanent stamp on the law, and I think that rejiggering the balance between state and federal powers back to where it was before the New Deal would be the kind of thing that would appeal to it.”
Whatever happens, it’s fair to say that the court against which the current crop of Republicans are furiously campaigning is not the court that will make headlines this spring. While the Supreme Court didn’t time these cases to arrive on the eve of a hotly contested presidential election, the fact that the court is poised to flex its federalism muscles at precisely the moment that the Tea Party has organized itself around the principle of states’ rights, and Occupy Wall Street has raised fundamental questions about government accountability, is a marvelous coincidence. The court isn’t just up to its neck in election-year politics. It is also hearing cases that raise issues more salient and more immediately relevant to voters on both sides of the aisle than the worn-out culture war clichés politicians have been shadow-boxing for decades.
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.