The Institutional Sources of State Success in Federalism Litigation before the Supreme Court

Abstract

The Supreme Court's recent federalism decisions are the clearest example of the states' improving legal fortunes in litigation against the federal government. Reducing the dramatic shift in the Court's federalism jurisprudence to the attitudinal voting of individual justices ignores the influence on the Court's decision making from broader institutional developments in American politics and domestic policy. These developments include: (1) the diminishing effectiveness of the states' lobbying power in the federal policymaking arena; (2) the increasing effectiveness of litigation by states' attorneys general in the federal judicial arena; and (3) the convergence of these developments resulting in a pro-state Supreme Court agenda.

Constructing the State Action Doctrine, 1940–1990

“…First, it ignores how specific cases are generated and arrive at the Court, overlooking the “support structure for legal mobilization, consisting of lawyers, organizations and sources of financing, that makes sustained litigation possible” (Epp 1999, 256). Thus, the “rights revolution” needed more than liberal, activist judges; it also required a structure of well‐financed advocacy groups adopting long‐term litigation strategies (Epp 1998; Chen 2003). For example, the NAACP had to spend $100,000 over the thirty‐one‐year course of the housing covenant litigation (Vose 1959, 213).…”

Towards an Integrated Model of the U.S. Supreme Court's Federalism Decision Making

“…Here I consider four such organizations, the Council of State Governments, the National Conference of State Legislatures, the National Governors Association, and the National League of Cities. Beginning in the 1960s, and with increased persistence over time, these organizations have been extremely active in their Washington lobbying efforts and frequently work together in the judicial arena by orchestrating litigation strategies on behalf of state and local governments (Chen 2003;Pickerill 2003). Most commonly, these organizations do so by cosigning amicus curiae briefs (Colker and Scott 2002).…”

“…Through these federalism decisions, the justices are charged with determining the proper balance between the authority of states to operate as sovereign entities, free from federal interference, and the expansiveness of the federal government's reach under the Constitution. The importance of this debate is perhaps no more evident than in scholarly analyses of the Rehnquist Court's so-called ''federalism revolution,'' in which the justices, under the leadership of Chief Justice Rehnquist, are argued to have reinvigorated the concept of taking states' rights seriously to a level that had not been witnessed since before the New Deal (Chen 2003;Greenhouse 2001;Pickerill and Clayton 2004). In so doing, the Rehnquist Court appeared to breathe new life into conspicuously long-forgotten constitutional provisions involving federalism as it struck down federal laws involving a wide range of social policies, including the regulation of firearms on school property (United States v. Lopez [1995]), violence against women (United States v. Morrison [2000]), and the free exercise of religion (City of Boerne v. Flores [1997]).…”