Supreme Court's States' Rights Battle Goes Largely Unnoticed

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WASHINGTON -- Few Americans wake up in the morning worried about threats to their state's "sovereignty" or the fate of "federalism," the balance of power between national and state authorities.

Yet five justices of the Supreme Court have made these issues their cause, and last week's final round of rulings for the term showed them determined to return American law to an earlier era.

Beginning four years ago, the court's conservatives have steadily stripped away power from Congress and federal judges and given the states a new shield of immunity.

It is unclear, though, where they are headed. Back to the 1950s, before the expansion of federal civil rights protection? Or to the 1920s, before the New Deal era and federal intervention in the economy?

The court's four liberal dissenters fear their colleagues are looking to the 1780s, when a weak national government held little sway over the states.

"This is the first time in more than 60 years where we see an aggressive, conservative activism" from the Supreme Court, said Louis Seidman, a liberal law professor at Georgetown University. "They have shown themselves willing to overturn decisions made by the democratic process, and they are prepared to do it without any basis in the text of the Constitution."

Despite their fervor for federalism, however, the court's conservatives do not always stick together, and this term also saw liberal triumphs in the areas of sexual harassment and welfare benefits.

But those are the exceptions in a court where states' rights conservatism remains the driving force.

On Wednesday, the 5-4 majority ruled the principle of "state sovereign immunity" shielded states from having to pay overtime wages to their workers, as required by federal law. Justice Anthony Kennedy admitted the Constitution said nothing about the states having a special exemption from valid federal laws. Nonetheless, he concluded the "founders' silence" shows the notion of state immunity was understood and accepted in 1787 when the Constitution was written.

The resurgence of states rights has been called the third wave of Supreme Court activism during this century. The first was when pro-business conservatives controlled the court during the first decades of the 20th century. They regularly struck down state and federal laws that, for example, sought to halt child labor or ensure minimum wages and maximum hours for workers. …