Variations on a Theory of Normative Federalism: A Supreme Court Dialogue

Abstract

ion? I would suggest that the two opposed sides may find common ground by analyzing the relative capacities of the different governmental institutions involved in federalism issues. It may be possible to give substantial value to individual rights and to the democratic process by looking realistically at the contribution to be made by the state Ann Althouse, Variations on a Theory of Normative Federalism: a Supreme Court Dialogue 42 Duke L. J. 979 (1993) courts. If the Blackmun theory of federalism, which places individual rights at its center, were to loosen its fixation on the idea that rights are impaired unless they receive enforcement in federal court, that theory could include a reevaluation of the role of the state courts. If federal jurisdictional doctrine forms an incentive structure designed to insulate only those state courts that provide a genuinely competent and unstinting review of all claims of federal right, then some deference to the states is normative in a way that could be compatible with Blackmun’s basic values. State courts could earn deference in the form of, say, freedom from habeas review, if their work rose to a sufficiently high standard, which the federal courts would apply seriously and without undue delicacy and “comity.” The O’Connor theory is also compatible with this position. Her acceptance of the states’ interest in “finality” or the state judges’ “dignitary interest” in being left alone in habeas cases should not suffice. Serious scrutiny of the state courts’ work ought to precede deference. If Justice O’Connor were to reconceive the states’ independent functioning as a tool for enhancing the enforcement of rights, she might develop her theory of normative federalism to the point where it would command respect both on and off the Court.