Federalism, the Rehnquist Court, and the Modern Republican Party

Abstract

Most scholars agree that federalism was central to the Rehnquist Court's constitutional agenda. But there is a part of the federalism story that has been largely overlooked: the Court's decisions involving the structural constraints on state governments, the most significant of which are preemption and the dormant Commerce Clause. This article makes two empirical claims about the Rehnquist Court's federalism jurisprudence, one descriptive and one interpretive. The descriptive claim is that that the Court's overall approach to federalism was more complicated than many have assumed, and it was not necessarily friendly to the states. To support this contention, I present an empirical study. Part of the study is qualitative, analyzing the justices' modest alterations to preemption and dormant Commerce Clause doctrine during Rehnquist's tenure as chief justice. The other part is quantitative, offering a statistical analysis of the justices' voting patterns in decisions handed between October 1991 and June 2005, the fifteen terms that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas served together. My interpretive claim is that these apparently inconsistent attitudes towards state autonomy are quite understandable once we consider the broader historical and political context. In fine, the Rehnquist Court's federalism decisions reflected the values of the post-Watergate Republican Party, the political coalition that empowered and sustained a majority of the Court's justices. The modern GOP has generally endorsed the abstract principle of devolving greater power to state governments, and particularly the judicial enforcement of the limits on Congress's enumerated powers. But when the principle of state policymaking autonomy has clashed with the goal of reducing economic regulation, Republicans have repeatedly opted to reduce regulation at the expense of state authority. The Rehnquist Court's federalism jurisprudence largely mirrored these priorities.