Ideological Voting in Supreme Court Federalism Cases, 1953-2007*

Article excerpt

The Rehnquist Court's "federalism revolution" has provoked an increase in research regarding an apparent change in the pattern of Court decisions. While previous literature has discussed the ideological motivations of these decisions, this article conceptualizes attitudes toward federalism cases as having two dimensions: preferences regarding the structural division of government authority and preferences for different policy outcomes. This article provides a comprehensive analysis of individual justice votes in federalism cases from 1953 through 2007. While controlling for other institutional and legal factors that may influence decision making, the results show that individual ideology influences federalism voting in two ways: 1) conservative justices are generally more likely to vote in favor of states' rights, and 2) the size of this difference varies greatly depending on whether a states' right vote leads to a more or less liberal policy outcome.

Efforts to curb congressional power throughout the 1990s and into the 2000s by the Rehnquist Court have brought the issue of federalism back into political debate. Congress has steadily expanded its jurisdiction under the Commerce and Supremacy clauses since the New Deal, and this expansion was largely left unchecked by the Supreme Court until recently (Homan, 1995). For example, between 1952 and 1993, 44 federal laws were struck down by the Court compared to 355 state laws. Between 1994 and 2000, 24 federal laws were struck down along with 25 state laws (Pickerill and Clayton, 2004:233). The greatly increased relative focus of the Court on reviewing federal legislation has led many scholars and commentators to proclaim that the Rehnquist Court started a "federalism revolution" (for example, Chen, 2003; Clayton and Pickerill, 2004; Colker and Scott, 2002; Cross and Tiller, 2000; Pickerill, 2003). However, the causes and consequences of this increased focus on federalism are still widely debated. The Rehnquist Court's recent federalist decisions are also strongly intertwined with larger issues concerning judicial review and the Court's role in protecting federalism and state sovereignty.1 In addition to the policy repercussions, the varying potential motivations behind federalism cases have different normative implications regarding the treatment of federalism by the Court, as well as for judicial review in general.

This article seeks to contribute to the analysis of this Federalism Revolution by analyzing a more complete conception of how ideology might influence voting on federalism cases. It does this by testing for two different dimensions of preferences that might influence a justice's decision, as opposed to much of the previous research, which considers a justice's ideology to be unidimensional. On the one hand, a justice's ideology may influence what he or she perceives is the proper division of power between the federal and state governments and, thus, lead to more principled decisions to either give the federal government more or less authority regardless of the issue at hand. A more policy-based attitudinalism, however, might influence voting in a different way. Justices may make decisions based on their beliefs regarding the specific policies in the cases, placing less of an emphasis on preferences for the structural arrangement of the federal system.2 While the argument that justices vote ideologically (either in federalism cases or in general) is certainly not a new one (see, for example, Baybeck and Lowry, 2000; Cross and Tiller, 2000; Solberg and Lindquist, 2006), the literature on this topic provides an incomplete account of how the Supreme Court has dealt with federalism issues throughout its history. Much of the analysis is qualitative or focuses primarily on the Rehnquist Court. I seek to fill this gap by engaging in a thorough quantitative analysis of federalism cases over the span of multiple Courts.

Other explanations for the "Federalism Five's"3 support for states' rights have run the gamut of arguments regarding legal and principled decisions (Eskridge and Ferejohn, 1994; Young, 2005), the institutional and political context (Chen, 2003; Clayton and Pickerill, 2004; Pickerill and Clayton, 2004), and attempts by the Court to limit Congress's authority while increasing its own power over policy outcomes (Colker and Brudney, 2001; Whittington, 2001). …