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.
Although eye-catching, such attempts to recast the theoretical limits of federal power are less significant than the operational question of who—Congress or the Court—should decide what those limits are. If there is, to use Rehnquist's term, a "first principle" of the post-New Deal concept of constitutional governance, surely it is that the people's elected representatives, not life-tenured judicial appointees, should determine what problems the federal government will address and where in the federal system to assign responsibility.
For the first third of the twentieth century a conservative Supreme Court enforced a laissez-faire ideology by blocking federal regulatory initiatives on federalist grounds. But in 1937, under pressure from President Franklin Roosevelt, the Court changed its tune. Since that time the nation has engaged in innumerable debates about the proper allocation of power between federal and state governments. These debates have spanned virtually all areas of domestic policy—health, education, environmental protection, discrimination, law enforcement, and, currently, euthanasia, abortion, and cloning. But the debates have never been about whether Congress can impose national standards; they have been about whether it should. All sides have assumed that Congress has the constitutional authority to address any problem of national importance.
This was the bedrock assumption that the Lopez majority challenged as a violation of constitutional "first principles." It is a challenge that has brought the nation close to a point where Congress could find itself virtually unable to pass laws regulating any non-economic matters. The majority opinion in Lopez indicated that such matters are inherently those that "States may regulate but Congress may not." Combine that with the February 2001 decision in Board of Trustees of the University of Alabama v. Garrett, which barred application of the Americans With Disabilities Act to state employees, and which ruled that even meticulously documented default by state governments will not necessarily permit federal intrusion on state sovereignty to enforce the Fourteenth Amendment. Add the notion—sometimes invoked by the Court majority and frequently repeated by advocates of federalism on the lower federal courts and elsewhere—that control of areas such as education and law enforcement is the states' "sovereign" prerogative. The result could be that non-economic regulatory laws such as the ADA and the Endangered Species Act become flatly unconstitutional.
As the Yale scholar Bruce Ackerman has shown, the United States has several times cast aside one working model of the Constitution and replaced it with another, each time through a highly political process that has involved Congress, the presidency, and elections as well as the Supreme Court. The most recent makeover occurred in the late 1930s and the 1940s, when the Supreme Court was driven to accommodate the New Deal.
The nation may have arrived at a new constitutional watershed. The question of the moment is whether the confirmation process for Bush's judicial nominees will spark a vigorous debate on the merits of the new conservative jurisprudence. The issue is not achieving "balance" on the courts between "liberal" and "conservative" judges, as some Democratic senators and liberal professors have suggested. If Americans elect Republican Presidents, they can expect Republican judges. The issue is the specific agenda of this particular genre of judicial conservatives. Their predecessors were more hard-nosed about the Bill of Rights than their liberal counterparts, but they preached deference to the political branches, and they worked within the post-New Deal constitutional regime. Rehnquist, Scalia, Thomas, and their allies consider themselves outside the consensus that supports that regime. They are working to change it.
At some point groups across the political spectrum will be forced to recalibrate their interest in this debate as they grasp their stakes in such questions as Is the United States a unified democratic nation or, as the Federalist Society claims, a "Federal Republic," in which autonomous state governments are the sole forum for addressing a wide range of issues? Can the electorate discipline the federal establishment, or is active Court intervention necessary, as the libertarian Cato Institute contends, to "constrain government growth"? Is it unrealistic to retain James Madison's belief, expressed in The Federalist No. 46, that in allocating federal and state functions the people should be free to give "most of their confidence where they may discover it to be most due"? May Congress determine that effective education requires national testing standards, or that anti-terrorist measures require background checks by local police departments on arrestees, gun buyers, or other groups? Do the states need the courts to protect them from congressional overreaching?
Ultimately, this debate is about democracy—about what the defining elements of our constitutional scheme are and, in particular, what place democracy occupies in it. In a recent speech at New York University, Justice Breyer suggested that the Constitution should be understood primarily as an engine for promoting "democratic self-government." The Constitution itself (and, implicitly, a Court administering it), Breyer said, "does not resolve, and was not intended to resolve, society's problems" but rather "provides a framework for the creation of democratically determined solutions [italics added]."
Many observers may wonder, What's the big deal? Isn't this obvious? But one suspects that Breyer felt compelled to make this statement because three of his colleagues on the Court disagree and two others are not sure where they stand.
As the New York University professor Larry Kramer has noted, activist conservatives argue that it is exclusively the province of the judiciary—not of Congress, the President, or the states—to say what the Constitution means. They do not view federal lawmaking as a process in which the various interests, including state governments and agencies, arrive at "democratically determined solutions." On the contrary, they view Congress through the lens of economic libertarianism and its cousin, "public-choice theory," which cast legislatures as irredeemably warped by the parochial machinations of interest groups and self-seeking officials. New federalists treat the legislative process as merely a first step toward giving the courts the final word on what the law is.
How far will the Court pursue its federalist project? Will it ultimately align the law with the conservative Northwestern law professor Gary Lawson's view that "the post-New Deal administrative state is unconstitutional"? Will the velocity of change increase if the current, shaky 5-4 majority becomes a rock-solid 6-3 or 7-2? Or will Justice O'Connor or Justice Kennedy team with pragmatic conservative appointees and centrists in the current minority to shape a moderate, "mend it, don't end it" approach to federal regulatory excess? The bet here is that the new federalists will continue on their way without missing a beat absent engagement in the issue by the President or Congress. And if Bush v. Gore taught us anything, it is that when Justices Rehnquist, Scalia, and Thomas know their destination, they will not worry about breaking doctrinal china to get there.
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