The Deregulatory Valence of Justice O'Connor's Federalism

Abstract

When Justice O'Connor announced her retirement in July 2005, reflections on her career teemed with references to her role as a leader of the Rehnquist Court's federalism revival. But the common perception of O'Connor as an ardent defender of the states' independent policymaking authority is grounded in a narrow understanding of constitutional federalism - one that focuses primarily, if not exclusively, on the limits of the national government's power. Constitutional federalism also involves a variety of structural constraints on state power, constraints that are designed to protect the interests of the nation as a whole. And in cases implicating these union-preserving provisions and doctrines - such as preemption and the dormant Commerce Clause - O'Connor did not demonstrate a similar dedication to state autonomy. Instead, her voting record was no more protective of the states' independent authority than the average justice with whom she served. This article presents a empirical assessment of Justice O'Connor's voting record in the full range of cases addressing the Constitution's federalism-based limits on governmental power, comparing her record to that of the justices with whom she served. It demonstrates that her reputation as a strong proponent of vibrant state autonomy needs to be tempered, for it is only accurate with respect to disputes about the powers of the national government. If we expand the universe of federalism cases to include those involving the Constitution's structural limits on the states, O'Connor's dedication to state autonomy appears rather tepid. In fact, an equally prominent theme, especially in the second half of her tenure on the Court, is that she tended to disfavor government regulation of any sort, whether it emanated from Congress or the states.