Court's Federalism Decisions Research Articles

Federalism and Historical Voting on the U.S. Supreme Court

ABSTRACTA large body of scholarship has sought to explain the influences on the Supreme Court's decision-making. However, much of this research focuses on the modern era. Given the Court's institutional weaknesses in early American history, there is good reason to believe that early Supreme Court justices behaved differently than their contemporary counterparts. This article develops a dataset of federalism cases from 1789 to 2007 in order to analyze the role of ideology in the Court's federalism decisions throughout different eras of American history. This area of law is particularly useful for comparison given the early and enduring saliency of the boundaries between state and federal authority. The data reveal evidence that ideological voting developed over time as the Court paid more attention to legal and political factors as it developed its institutional legitimacy throughout the 1800s.

The Rehnquist Court's Federalism Decisions

The Rehnquist Court's Federalism Decisions

The Supreme Court and federalism in Nigeria

ABSTRACTSince Nigeria's transition from military to civilian rule in 1999, the country's Supreme Court has risen from a position of relative political obscurity and institutional vulnerability into a prominent and independent adjudicator of inter-governmental disputes in this chronically conflicted federation. Examined here is the Court's arbitration, during President Olusegun Obasanjo's two civilian constitutional terms (1999–2007), of fifteen different federal-state litigations over offshore oil resources, revenue allocation, local governance and public order. The Court's federalism decisions were remarkably independent and reasonably balanced, upholding the constitutional supremacy of the Federal Government in several findings, tilting towards the states in some declarations, and simultaneously underwriting federal authority and state autonomy in other rulings. Despite the Court's important and independent role, however, the Nigerian federation was vexed by violent conflicts, underscoring the structural, political and constitutional constraints on judicial federalism in this notoriously complex and divided country.

Federalism, the Rehnquist Court, and the Modern Republican Party

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.

Preemption in the Rehnquist Court: A Preliminary Empirical Assessment

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights. Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data. Extravagant attention has been lavished on a few landmark cases, which may not be a reliable guide to the preemption universe. Studies of judicial behavior in this area have relied on an inadequate empirical foundation. This Article presents an empirical overview and a preliminary analysis of the Rehnquist Court's preemption decisions. Part II describes the case universe and the outcomes. Part III discusses the role of the Supreme Court-more precisely, the Court's perception of its own role-in preemption litigation. Part IV suggests that outcomes in preemption cases may be most readily explained as judicial responses to certain signals or "cues." Two signals in particular prove significant: the presence of a state as a party to a preemption dispute, and the position of the Solicitor General. State amicus briefs and the partisan affiliation of the Solicitor General (Democrat or Republican) may also affect preemption case outcomes; however, we cannot show either variable to be statistically significant. Part V examines the justices' votes in preemption cases and addresses the discontinuity between the Rehnquist Court's federalism cases and its preemption decisions. The Court's federalism decisions have, until very recently, worked a major doctrinal shift in federal-state relations, in favor of the states. That shift has been the work of a stable bloc of five conservative justices, who have carried the federalism banner against a bloc of four liberal justices. In preemption cases, in contrast, liberals often vote against preemption (and thus "for the states"), whereas conservative justices often flip-flop in the opposite direction. We find substantial evidence to but-tress the impression of preemption cases as a mirror image of pure federalism cases. Unlike federalism law, however, preemption law shows no clear decisional trend. Moreover, we find no firm voting blocs and no swing vote. The concluding Part VI re-examines the perceived discontinuity between the Rehnquist Court's federalism and preemption decisions in light of the evidence and argues that a satisfactory explanation of that phenomenon is bound to be more complicated than a simple "attitudinal" model of judicial behavior would suggest.

The Rehnquist Court and the Political Dynamics of Federalism

The Rehnquist Court's federalism decisions have sparked contentious debate about the role of the Court in the American political system. This article examines the reasons behind the Court's revival of federalism and the controversy it has produced. The first part reviews the normative jurisprudential debate over the Court's role as it has been cast in the legal academy. In the second part, we turn to an historical-empirical, or “political regimes,” framework for understanding the role of the Supreme Court. Although this framework provides a better explanation of the Rehnquist Court's foray into federalism, the connections between this approach and normative jurisprudential debates remain important, and we explore them in the final section. The Court's recent jurisprudence on federalism reflects both consensus and division within the current political regime—consensus that federalism is an important value, but division over how best to protect that value. We argue that competing jurisprudential theories over the role of the Court illustrate these political divisions. Thus, this article highlights the special insights political scientists bring to the subject, but also demonstrates how the two approaches can be usefully combined to provide a more robust understanding of the Court's role in the American political system.The authors thank Richard Brisbin, John Dinan, Mark Graber, Ashley Grosse, Jennifer Hochschild, Tom Keck, David O'Brien, Bob Turner, and the anonymous reviewers for their comments and suggestions along the way.

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of the Rehnquist Court's post-1990 federalism decisions, but there is less agreement about the consequences of these decisions. A previous study examined the direct consequences of these decisions, by inquiring into the extent to which Congress was able to revise and reenact statutes that were struck down by the Court, but it left unexamined the effects on Congress's ability to legislate in other areas. This article assesses the indirect consequences of these decisions by tracing their effects on the drafting of and debate over bills other than the ones directly invalidated by the Court. It turns out that these decisions have had only a limited effect on Congress's ability to draft constitutionally acceptable legislation, but they have had an important effect on the debate over the passage of several pieces of legislation, whether by handing opponents arguments to oppose the bills or by providing members of Congress with means to explain voles that would otherwise be difficult to defend. Copyright 2004, Oxford University Press.

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So

The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.

Congressional Responses to the Rehnquist Court's Federalism Decisions

Scholars who have sought to assess the consequences of the Rehnquist Court's federalism decisions have identified various means by which Congress can overcome the effects of these rulings, but there have been few efforts to investigate the degree to which Congress has employed these means. This study finds that Congress has enjoyed limited success in responding to the Court's rulings. Significantly, though, the failure to overcome the effects of these decisions is rarely attributable to the fact that the Court's constitutional doctrines have erected insurmountable barriers to congressional action. Rather, the Court's decisions have forced congressional supporters of the invalidated statutory provisions to build and hold political coalitions in support of the repassage of these laws, and this has frequently proved to be difficult to accomplish, whether due to a lack of enthusiasm for such efforts, conflicts with other policy goals, or opposition from other groups. Copyright 2002, Oxford University Press.

The "Conservative" Paths of the Rehnquist Court's Federalism Decisions

The "Conservative" Paths of the Rehnquist Court's Federalism Decisions