Academic journal article
By Kilwein, John C.; Brisbin, Richard A., Jr.
Judicature , Vol. 89, No. 3
The justices' support of congressional ability to preempt state legislation and their oversight of state interpretations of Bill of Rights guarantees ensured a vital political role for the Court in protecting federal power.
Among the important legacies of the Rehnquist Court is the justices' reconsideration of the interpretation of American federalism that emerged from the New Deal. Post-New Deal federalism expanded the power of the federal judiciary to defend the rights of discrete and insular minorities and other citizens against discriminatory state regulations and the power of Congress and federal agencies to regulate the economy and to mandate state economic and social policies. Conversely, the Rehnquist Court (1986 to 2005) imposed boundaries on Congress's use of the commerce clause and federal mandates to address topics such as radioactive waste disposal, gun control, violence against women, and a revitalization of Eleventh Amendment jurisprudence in ways that sometimes supports the states against Congress.1 Nonetheless, the justice's support of congressional ability to preempt state legislation and their oversight of state interpretations of Bill of Rights guarantees ensured a vital political role for the Court in protecting federal power.2
Besides tinkering with federalism doctrine, the Rehnquist Court justices continued to oversee the work of state courts. The extent and ideological direction of federal review of state high court decisions has received close study only for the early terms of the Rehnquist Court. This article updates and extends the description of this relationship and analyzes the ideological patterns of the U.S. Supreme Court review of state court of last resort decisions.3 It addresses the specific questions: What is the pattern of Rehnquist Court review of state court decisions? How does this pattern compare to the Warren and Burger Courts? In answering these questions this article replicates and extends the study of U.S. Supreme Court review of state high court decisions for the Warren and Burger Courts to all but the last term of the Rehnquist Court (1986 to 2003 terms). Building on previous studies, we assume that the U.S. Supreme Court's changing ideological composition might have affected the Court's review of state supreme court decisions.
This assumption derives from the attitudinal model of judicial decision making, which contends that the ideological direction of the justices' political attitudes defines and predicts judicial decisions.4 Thus, because the attitudes of the majority of its justices were conservative, the hypothesis is that the Rehnquist Court more frequently supported conservative state high court decisions and overturned liberal state high court decisions. Following the scholars who developed the attitudinal model, conservative decisions are those favoring governments over First Amendment and privacy rights litigants, governments over criminal defendants, governments over parties alleging a denial of equal protection of the laws and other civil rights, and businesses over employees, union, and governmental regulators. Because this article aims to contribute to the symposium by describing the Rehnquist Court's review of state court of last resort decisions in aggregate terms, it does not explore individual judges' voting patterns.
The analysis in this article employs decisions from October 1953 to July 2004 included in the Original United States Supreme Court Judicial Database.5 The decisions examined include most in which a state supreme court was the court of last review prior to docketing with the U.S. Supreme Court.6 Excluded were decisions in which a state intermediate appellate or trial court was the court of last review.7 Decisions from the District of Columbia and Puerto Rico were also excluded. To ensure the examination of each specific act of review, affirmation, or possible sanctioning, the analysis included each docketed case decided by opinion or per curiam as a separate unit of analysis, and it excluded memorandum cases, decrees, and other "back of the book" actions. …