The Rehnquist Court and the Political Dynamics of Federalism

Abstract

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.

Getting a Poor Return

“…More recently, Whittington (2005) observes that an emerging literature argues that Supreme Court doctrine fits within the broader political regime (see e.g. Gillman, 2002;Pickerill and Clayton, 2004), and 'structural characteristics of the political systems such as the United States encourage cooperation between judges and political leaders to obtain common objectives' (Whittington, 2005: 584).…”

Holding the Accountability Problem Accountable: Response Mechanisms to Counter-Majoritarian Decisions

“…While the Justices do not stand for election, I argue that the response mechanisms offer feasible solutions that mitigate not only the accountability problem, but also the countermajoritarian difficulty. Before recapping the responses and discussing their range of results, it is important to remind ourselves that contemporary conditions-especially divided government (Tushnet 2003), factionalization within parties (Lemieux and Lovell 2010), and polarization (Keck 2014)-might provide political safeguards Pickerill and Clayton 2004) that lessen the likelihood of a consolidated majority employing a given mechanism. Nevertheless, because some Court decisions truly are counter-majoritarian (Friedman 2002), the following responses are still viable options to dissatisfied majorities.…”

Whither the Roberts Court?

“…And while the Rehnquist Court reasserted judicial authority over Congress' Interstate Commerce Clause powers in cases such as United States v. Lopez (1995) and United States v. Morrison (2000), these cases had only minor impact on federal regulatory law. Indeed, the statutes they invalidated -the Gun Free School Zones Act and the Violence Against Women Act -duplicated laws found in most states, and the doctrinal approach that the Court used in these cases only affected regulation of activities of a non-economic nature, leaving entirely intact the core New Deal principle of broad congressional power to directly regulate economic activity (Pickerill and Clayton 2004). 9 While the Rehnquist Court thus curbed New Deal constitutionalism, it ultimately fell short of replacing it with a New Right alternative.…”