The Rehnquist Court And Its Imperiled States' Rights Legacy

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If Chief Justice William H. Rehnquist retires this summer, as appears likely, the court's ruling last week that federal drug law trumps states on the use of medical marijuana will be its last word on federal-state relations during his tenure.

A hallmark of the Rehnquist Court has been a re-examination of the country's most basic constitutional arrangements, resulting in decisions that demanded a new respect for the sovereignty of the states and placed corresponding restrictions on the powers of Congress.

But what had seemed until very recently to be a legacy in the making now appears evanescent, perhaps even illusory. Those who thought they were witnessing a revolution were last week using very different words.

"The federalism boomlet has fizzled," said Michael S. Greve of the American Enterprise Institute, a conservative research organization here. Mr. Greve directs the group's federalism project, dedicated to "rehabilitating a constitutional federalism."

The outcome of the marijuana case had been expected. The 2003 decision by a federal appeals court in San Francisco that Congress lacked constitutional authority over marijuana, grown for noncommercial purposes, that did not cross state lines had appeared ripe for overruling. A unanimous reversal in the case, Gonzales v. Raich, would have signified only that the combatants in the federalism wars were waiting for a more fruitful battleground.

But the decision was a hard-fought 6 to 3, with the chief justice in dissent along with two of his allies in the federalism cases, Justices Sandra Day O'Connor and Clarence Thomas. Clearly, the justices had treated Gonzales v. Raich as a major federalism battleground, and just as clearly, the chief justice had lost.

And where were the other two members of his usual 5-to-4 majority? Justice Anthony M. Kennedy joined the majority opinion without explanation. Justice Antonin Scalia did explain himself, at length, in terms that gave little comfort to those who viewed the outcome with dismay.

"A fair-weather federalist," was how Roger Pilon, director of the libertarian Cato Institute's Center for Constitutional Studies, described Justice Scalia. Asked for his response to the decision, Mr. Pilon exclaimed: "A disaster."

The full measure of what was at stake, and what was lost, was provided by Justice O'Connor's dissenting opinion. It was a cri de coeur from a justice whose commitment to the federalism agenda had led her five years ago to vote with the majority to strike down a central portion of the Violence Against Women Act, which authorized victims of crimes "motivated by gender" to sue their attackers in federal court. Intrastate activity that was not essentially economic was beyond Congress's reach under the Commerce Clause, Chief Justice Rehnquist wrote for the 5-to-4 majority in United States v. Morrison.

The marijuana decision, Justice O'Connor said in her dissent, was "irreconcilable" with the Violence Against Women Act ruling and with United States v. Lopez, a 1995 case that overturned a federal law prohibiting the possession of guns near schools. The Lopez case "makes clear that possession is not itself commercial activity," Justice O'Connor said, and for the court to now deem the possession of marijuana within Congress's authority "threatens to sweep all of productive human activity into federal regulatory reach."

It was a complaint the majority barely deigned to answer. "We need not determine," Justice John Paul Stevens said in the majority opinion, whether the cultivation and use of marijuana for medical purposes, "taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding." Clearly it did, he said, adding: "That the regulation ensnares some purely intrastate activity is of no moment."

For the 85-year-old Justice Stevens, a vigorous dissenter from the Rehnquist federalism decisions, it was a moment to savor - and not the only recent one. In some of the most important cases of the past three terms, on affirmative action, gay rights, the juvenile death penalty and a federalism decision a year ago that rejected state immunity under the Americans With Disabilities Act for inaccessible courthouses, he has managed to pull together and hold a majority.

"Stevens is at the peak of his effectiveness," Professor Thomas W. Merrill of Columbia Law School, a former deputy solicitor general and close observer of the federalism cases, said last week. "It is a remarkable achievement."

Was the federalism revolution ever real and, if so, what happened to it?

It was a revolution, but a flawed one, in Professor Merrill's view, "a revolution of convenience" rather than deep conviction on the part of all five. "They wanted to make a difference, to leave a legacy. It was something that all five could rationalize themselves into going along with. But once things started to get on difficult territory, it started to fall apart."

In a law review article he published two years ago, entitled "The Making of the Second Rehnquist Court," Professor Merrill proposed that among the five, Justice Scalia's commitment to Rehnquist-style federalism was the weakest, the product of a strategic choice by the justice to ally himself with the four others for the sake of being on a winning team after concluding that he was unlikely to make headway with his agenda on abortion, religion, and other social issues.

Professor Mark V. Tushnet of Georgetown University Law Center, the author of a new book, "A Court Divided: The Rehnquist Court and the Future of Constitutional Law," said that the earlier decisions had "brought the justices to a threshold that was far away when Rehnquist joined the court." And now, he said, "they have to decide whether to stay where they are, or continue on, or retreat."

The marijuana case "does not necessarily mean a retreat," he said. "It was an easy case, a case at the heart of national regulatory authority." Professor Tushnet said a more telling case would be a challenge to the application of the Endangered Species Act to a species without commercial utility, found only within one state.

Such a case is on the court's calendar, awaiting the justices' decision whether to hear it. The question in GDF Realty Investments v. Norton is whether Congress has authority to apply the Endangered Species Act to require protection of six species of cave-dwelling insects that live in caves west of Austin, Tex.

Other cases awaiting action by the court question federal authority over homemade machine guns and over the possession of child pornography. In these two, federal appeals courts ruled against the government, citing the authority of the Supreme Court's Lopez and Morrison decisions. How much of that authority remains is now the question.

"The court was never clear about what it wanted to accomplish or how the revolution would play itself out when the first modest steps bumped up against entrenched political structures," said Mr. Greve of the American Enterprise Institute.

Like Mr. Greve, other scholars have wondered whether the court was actually engaged with anything more than "symbolic federalism" that did not actually threaten federal policies that affected many people.

"The court never reached a stable equilibrium, and now we are in a period of very robust national commitments, domestic as well as foreign." Ultimately he said, "it is a revolution that has found no takers."

Pubdate: Sun, 12 Jun 2005
Source: New York Times (NY)
Copyright: 2005 The New York Times Company
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