The Law June 2002

The Most Dangerous Branch?

The Supreme Court has been signaling that it will treat Congress roughly in the coming decade—but nobody seems to be paying attention
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On Saturday, December 9, 2000, literally minutes before the United States Supreme Court issued its startling 5-4 decision to stay the Florida presidential-ballot recount, I happened to be chatting about the case after tennis with a senior Clinton Administration legal official. Without hesitation my tennis partner, a canny political insider and a seasoned Supreme Court litigator, forecast victory for Gore. The Florida court, he assured a rapt locker-room audience, had "bullet-proofed" its opinion with an elaborate exegesis of the state's complex electoral statutes; no way would conservative justices, whose deference to state prerogatives was well known, second-guess a state supreme court's painstaking interpretation of its own state's laws.

My friend turned out to be wrong, of course—and he wasn't alone. Nearly all mainstream legal experts were blindsided by Bush v. Gore.

The decision should not have come as a surprise. For several years now judicial conservatives have been marching to a new and very different drummer, but to date only a tiny, mostly academic cadre of astute Court watchers has grasped the content and the implications of the Supreme Court majority's agenda. To be sure, the intense partisan struggle over President Bush's judicial nominees has not gone unnoticed. But the media and most politicians simply assume that they're witnessing a recycling of the high-decibel constitutional controversies and judicial-nomination struggles of the 1970s and 1980s. Indeed, President Bush has constantly reiterated his goal of naming "strict constructionists" to the federal bench, and has cited Supreme Court Justices Antonin Scalia and Clarence Thomas as model nominees. In fact, however, Scalia, Thomas, and their ideological followers on and off the Court have a very different view of their judicial philosophy. "I am not a strict constructionist," Scalia has written, "and no one ought to be."

Most observers surmise that the President has in mind candidates who would overturn Roe v. Wade, the landmark 1973 decision that made abortion a constitutional right, and other bold Bill of Rights interpretations of that era. But the architects of Bush v. Gore have a radically different set of priorities. Their focus is not on dismantling the edifice of "rights" built by "activist" liberal judges when Earl Warren and Warren Burger presided over the Supreme Court—indeed, this majority has often defended free-speech, privacy, and due-process safeguards against the claims of aggressive legislatures and prosecutors. Rather, their focus is on the scope of government power. Brandishing a starkly devolutionist concept of federalism, these new conservatives question decisions as far back as the 1930s that legitimated the New Deal and the Great Society, and that empower Congress to legislate on essentially any matter of national concern. The new credo differs sharply from the judicial restraint practiced by conservative justices such as Burger and Lewis Powell and articulated by the late Yale professor Alexander M. Bickel in his landmark treatise, The Least Dangerous Branch (1962).

Clarence Thomas is almost invariably allied with Scalia in expounding and extending this new federalist agenda. Joining in nearly as frequently, but with independent views, is Chief Justice William Rehnquist. More often than not this trio brings Justices Anthony Kennedy and Sandra Day O'Connor with it—though both sometimes balk at the philosophical claims and practical objectives of their colleagues. Off the Court the majority's themes resonate in the rulings of certain federal appellate judges, in conferences and publications of the conservative lawyers' Federalist Society, and in voluminous published works of conservative scholars at think tanks and universities.

Broad attention to the ideas propounded in these quarters is overdue. If those ideas are substantially realized, they will threaten the viability of major programs in fields as diverse as civil rights, environmental protection, health, and education—in particular the national testing requirements that form the core of President Bush's new No Child Left Behind law. Equally at risk are pending or likely proposals for federal action on such pressing national concerns as cloning and homeland security.

Champions of this new federalism first proclaimed its far-reaching scope and signaled their intense commitment to its principles in two 1995 cases—neither of which stirred significant public attention at the time. In United States v. Lopez the 5-4 majority that went on to decide Bush v. Gore ruled that Congress's constitutional power to regulate interstate commerce did not justify the Gun Free School Zones Act of 1990, which banned possession of a firearm within a thousand feet of a school. The specific holding of this case was narrow enough to permit Congress to salvage the law with minor technical changes. Nevertheless, the decision provoked an impassioned intramural debate on the Court, spanning six opinions and ninety-five pages in the United States Supreme Court Reports. Writing for the majority, Rehnquist dwelt only briefly on the gun ban itself; his real concern, he made clear, was to ensure that this federal remedy for school violence not set a precedent for "direct" federal regulation of the "educational process," such as a "mandate[d] federal curriculum for local elementary and secondary schools."

In dissent, Justice Stephen Breyer argued that Congress could readily find a "direct economic link between basic education and industrial productivity." (And indeed, six years after Lopez, precisely because of the widely perceived link between education standards and economic productivity, Bush proposed and Congress enacted mandatory national testing requirements to upgrade public school performance.) But to Rehnquist, it was simply irrelevant that Congress might rationally conclude that education materially affects the economy. In terms calculated to reverberate through decades of opinions to come, he wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." The enumerated powers do not include non-economic subjects, such as the regulation of local school curricula, over which the states "historically have been sovereign," and which "the States may regulate but Congress may not."

Rehnquist's zeal to wall off traditional state responsibilities from federal authority was reinforced by Thomas in a dissent to a second 1995 decision, U.S. Term Limits, Inc. v. Thornton. In this case a 5-4 majority—in which Kennedy voted with the four "liberal" members of the Court—barred states from imposing term limits on their congressional representatives. In his opinion, which was joined by Scalia, Rehnquist, and O'Connor, Thomas wrote that the concept of exclusive state jurisdiction, described by Rehnquist in Lopez, extends, "either expressly or by necessary implication," to all areas that the original Framers of the Constitution neglected to name. Elaborating, he asserted that "the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them." In other words, when the Framers wrote "We the People," they meant not we the people of a unified nation but we the people of each state. This theory reduces "We the People" to a meaningless rhetorical flourish; the Constitution and the federal government it creates are not instruments of the American people but creatures exclusively of—and hence decidedly junior to—the states and their governments.

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Simon Lazarus is Senior Counsel at the Constitutional Accountability Center, and previously served as Associate Director of the Carter White House Domestic Policy Staff.

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