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
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
"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
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.