The Federalism Project

American Enterprise Institute

September 30, 2001

Will the Court Reassert National Authority?

By Linda Greenhouse


WASHINGTON -- The Supreme Court's federalism revolution has been overtaken by events. 

For the last decade, the court, under Chief Justice William H. Rehnquist, has engaged in a far-reaching reappraisal of the scope of Congressional authority and the balance of powers between the national government and the states. 

In case after case, the court, which begins its new term tomorrow, invoked broad theories of the sovereignty of the individual states and a limited view of Congress's authority—creating a new federalism jurisprudence that has become the hallmark of the Rehnquist court.  Not since the Supreme Court's resistance to the New Deal crumpled in the late 1930's has the court been so hostile to the exercise of federal power. 

It is no coincidence that this federalism revival flourished in a post-cold-war atmosphere of tranquility, when it was easy to regard the federal government as superfluous at best. To many, it seemed a blundering and costly intruder into matters properly rooted at the state and local level. That attitude vanished three weeks ago, as suddenly and completely as the twin towers. 

"Federalism was a luxury of peaceful times," said Walter E. Dellinger, who as the Clinton administration's acting solicitor general in 1997 fought a losing battle at the Supreme Court to preserve the Brady gun control law. The court ruled 5 to 4 that Congress had violated core principles of state sovereignty by requiring local law enforcement officials to conduct background checks of prospective gun purchasers. 

To pick up that opinion today, a paean to the states as "independent and autonomous," in the words of Justice Antonin Scalia, is like unearthing an artifact from a bygone era. The majority opinion in Printz v. United States speaks from a consciousness far removed from a world in which a Republican president now proposes to give a new Homeland Security Agency authority over state and local as well as federal agencies engaged in domestic defense. 

Reflecting on the Brady Act case, Mr. Dellinger said, "One of the things I thought then was that we wouldn't be so casually discarding the authority of the national government in this way if the cold war was still going on." He added he had the same reaction to another defeat that year, the court's rejection of presidential immunity in the Paula Corbin Jones case. 

The Supreme Court's attachment to federalism and disaffection from it has often tracked changes in the nation's mood and circumstances. "Whenever you see a national emergency, federalism disappears," explained Robert C. Post, a law professor at the University of California at Berkeley who has examined the rise of nationalism during World War I. "In a national emergency, you give the national government the power to get done what needs to get done," he said. 

Professor Post said the court has a "dialectical relationship with the mood of the country"—at different times playing the role of leader, consolidator or follower. "But when something intense, momentary and vivid sweeps the country in the middle of responding to a crisis, it takes a very strong-willed court to buck that." 

Another scholar of the court, Prof. Sanford Levinson of the University of Texas Law School, said when the public turned to the federal government for solutions, federalism lost its "motive force," which was "a fundamental mistrust, a disdain for a national government that is seen as distant, probably corrupt and in any event as not reflecting the `real America.' " Now, by contrast, "suddenly it becomes very, very important to trust national leadership," he added. 

While both professors are critics of the court's federalism rulings, even strong supporters offer, if regretfully, a similar analysis. The events of Sept. 11 "struck at the heart of the federalism revival," said John O. McGinnis, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University. "We all experience it as Americans," he continued. "It brings the country together, and federalism, whatever its intellectual claims, doesn't speak to that." 

The court responds not only to the domestic mood but to the justices' perception of what message the court needs to send to the wider world, according to Mary L. Dudziak, a legal historian at the University of Southern California, who has proposed a foreign-policy-based explanation for the Supreme Court's shift on racial equality at the height of the cold war. In her book, "Cold War Civil Rights: Race and the Image of American Democracy," she asserts that the court's landmark desegregation decision, Brown v. Board of Education, can be seen as a reflection of the justices' belief that official racism at home was damaging the image of the United States and giving the Soviet Union ammunition in the worldwide struggle for dominance, an argument the federal government made in its brief to the court. 

"As the ground shifts under us now, the justices can't take themselves out of their cultural moment," Professor Dudziak said. "Federalism jurisprudence might have felt anachronistic and quaint in an era of globalization, but after Sept. 11 it feels dangerous." 

While there are cases on the court's docket for the new term that raise tangential federalism questions, none appear to provide raw material for a basic reappraisal. And, certainly, the justices are unlikely to repudiate what they have accomplished so far, said Michael S. Greve, director of the federalism project at the American Enterprise Institute, a conservative public policy organization. "It will be more subtle and nuanced, hard to trace," Mr. Greve said, predicting that the court will sidestep occasions to apply and extend the recent precedents. "It's too big not to have an effect," he said. "To sustain ancient constitutional doctrines at a time like this becomes 

The end of the federalism revolution raises another question: will the court follow another of its historical patterns and overcompensate in favor of the federal government, accepting the government's claims about the need to restrict individual liberties for the sake of national security. 

In 1987, one of the court's great civil libertarians, Justice William J. Brennan Jr., offered a sober warning on this point that now sounds particularly timely. Brennan said America's record in protecting civil liberties in times of war was "shabby," in part because the country had so little experience with threats to its security that it was not sufficiently practiced at sorting out real security risks and needs from exaggerated claims. 

"The episodic nature of our security crises" left the country and its judges vulnerable to being "swept away by irrational passion" when the unaccustomed threat arrived, Brennan said. "A jurisprudence capable of braving the overblown claims of national security must be forged in times of crisis by the sort of intimate familiarity with national security  threats that tests their bases in fact, explores their relation to the exercise of civil freedom, and probes the limits of their compass." 

It is a hard proposition: that only prolonged and intimate exposure to danger can develop the necessary wisdom to deal with it. By Brennan's measure, both the court and country are seriously out of practice. Both are now confronted by the end of a peaceful period that appeared, just days ago, to have no end in sight. 

So often in recent years, this court has seemed to have its eye on the past. Now, with the nation, it has been abruptly propelled into an unappealing future where the search for the right balance between order and liberty may well present the Rehnquist court with its greatest test.