The Rehnquist Court and the Mathematics of Federalism
Ernie Young’s post below raises a good point: while commentators tend to refer to “the Court” as a single entity, the Supreme Court consists of nine people with different views. In nonunanimous cases, “the Court” beomes a shorthand for the group of Justices in the majority.
In federalism cases, moreover, there is no clear majority on the current Court. Four Justices — Stevens, Souter, Ginsburg, and Breyer — more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don’t really share common ground on exactly what those limits should be.
Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O’Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren’t exactly their cup of tea. But often they don’t.
The mathematics of federalism on today’s Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.
The Rehnquist Court and the Mathematics of Federalism:
Ernie Young’s post at SCOTUSBlog raises a good point: while commentators tend to refer to “the Court” as a single entity, the Supreme Court consists of nine peo…
Comment by The Volokh Conspiracy — June 6, 2005 @ 6:41 pm
The adoption of the same old commerce clause reading should not surprise anyone who listened to Randy’s oral arguments.
He did not argue against any provision of the traditional commerce clause doctrine per se. Instead he argued for an exception to the standard doctrine.
That was a bit of a splitting-hairs avenue to pursue. The court was probably right in deciding that Randy’s argument was driving at a false dichotomy.
I estimate that the only way these challenges to Federal law have a chance is to admit they are covered by the existing commerce clause doctrine and act as a counter-example for why that doctrine is an abusive construction of the constitution.
Comment by Paul Allen — June 6, 2005 @ 7:27 pm
I think it supports the political legitimacy of the Court to refer to the rulings of the majority as an institutional decision rather than as the decision of 5 individuals. When five Justices speak, the Court speaks, and the law is what the law is (no matter who wins the most rhetorical style points, and no matter what we may personally believe was the right or wrong result).
When Bush v. Gore came down, critics didn’t attack the Court, but rather the Justices that joined the majority opinion. By framing the argument as what five bad Justices did, critics managed to do far more harm to the institution than had they said the Court as a whole had screwed up (now, those critics may place the blame for that damage on the five Justices, but that debate is for others).
Of course, this all hinges on whether the political legitimacy of the Supreme Court is something we actually want to uphold.
Comment by Chris — June 6, 2005 @ 9:13 pm
Doesn’t the constitution now violate the commerce clause?
Comment by Stan — June 6, 2005 @ 9:30 pm
I’ve never been sure about why the political branches listen to the court. It seems to me that about 1/3 of the time they are wrong.
Comment by Matt — June 7, 2005 @ 1:06 am
Eldred in Light of Raich
The Supreme Court delivered its decision in Gonzales v.
Comment by A Copyfighter's Musings — June 8, 2005 @ 2:13 am