Laundering Racism Through the Courts: The Scandal of States' Rights

Abstract

When three conservative law students founded the Federalist Society at Yale Law School in 1982, they probably didn't expect that it would become one of the most influential legal organizations in the United States. Since roughly the Society's founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law. The last two Chief Justices of the Supreme Court, William Rehnquist and John Roberts, have been strong adherents of federalism, as have virtually all of the other conservative justices. And President Trump is currently stocking the lower federal courts with like-minded jurists at a record pace. By federalism, these legal conservatives mean that the authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. On its face, the conservatives' attachment to federalism may not seem particularly objectionable, but the practical consequences of the conservatives' attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating. Lynn Adelman explores federalism in the context of two of the Roberts Court's most important federalist decisions, Shelby County v. Holder and National Federation of Independent Business ("NFIB") v. Sebelius.