Federalism's benchmarks.(COMMENTARY)

Article excerpt


Last week the Supreme Court ended its current term by sustaining the constitutionality of an Ohio program using vouchers at church-related

schools. The outcome could not confidently have been predicted, since the court is narrowly divided on church-state questions.

But what wasn't hard to guess was that the "conservative" position favoring the program that had been advanced by the Bush administration would be embraced by most if not all five of the "conservative" justices - they being Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. (As it happened, all five voted to support the program.) The reason this prediction was easy to make is that the conservative justices have often supported conservative positions on church and state.

The same is likely to occur when two other subjects that sharply divide the court - race and abortion - are brought before it. In such cases, you can anticipate that the Bush administration will advance a "conservative" position and that most if not all of the five conservatives will agree with it.

The model breaks down, however, when it comes to federalism, the last of the four big subjects often decided by the vote of single justice.

Consider the case handed down in late May pitting the South Carolina State Ports Authority against the Federal Maritime Commission. The issue was whether state sovereign immunity barred the commission from deciding a private complaint brought against the ports authority. The court, with the five conservatives constituting the majority, ruled in favor of South Carolina. It did so, having been told by the Bush administration to decide the case exactly opposite the way in did - in favor of the commission. And lo, the administration's position was taken by the four dissenters - Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Rarely does the administration strike out entirely with the conservatives and win the votes of only the liberals. But the South Carolina case didn't produce an odd voting pattern. The court divided exactly as it has in a series of federalism controversies dating back to 1995. Nor was the administration's position an exception to what it can be expected to advance in federalism cases.

Bear in mind that the solicitor general's office represents a particular government - the federal government. …