The activities of state attorneys general have received little scholarly attention despite their growing importance as national policymakers. This article examines how New Federalism and divided government during the past two decades has altered the political context of state legal work and how state attorneys general have responded. In addition to establishing new mechanisms for integrating state law enforcement policies, state attorneys general have assumed a more coordinated and proactive litigating posture in the federal courts. These developments have allowed states to launch effective challenges to federal law enforcement policy and to protect state regulation from federal preemption.For more than two decades scholars have described a new American political system in which public policy has become increasingly dependent on litigation and administrative decisionmaking rather than on elections and legislation. 1 At the junction of the judicial and the administrative policymaking arenas is a substratum of government lawyers and legal advisors. The changing political context of government lawyering at the federal level has been recognized in a growing body of scholarly literature. 2
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.
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