States' Rights Momentum on Court May Be Waning ; Justice O'Connor Played Key Role in Two Cases That Suggest Limits to the Federalism Revolution

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Only a few years ago the US Supreme Court seemed bound and determined to recast the balance of federal and state power by sharply limiting the ability of Congress to infringe on the sovereign authority of the states.

For the first time since the New Deal, a majority of justices were taking a consistent, restrictive view of congressional legislation whenever it infringed on state's rights.

But a funny thing happened on the way to the high court's federalism revolution - it appears to have hit a speed bump named Sandra Day O'Connor. For the second time in two years, Justice O'Connor has cast a critical swing vote in a major case involving the balance of power between the national and state governments.

Last year it came in a case upholding the application of the federal Family and Medical Leave Act to the states as a valid means of fighting gender discrimination. On Monday, her vote upheld the ability of disabled individuals to sue a state government for failing to provide reasonable access to the courts as required under the federal Americans With Disabilities Act and the US Constitution.

In both cases the losers were state governments arguing that as sovereign coequals within the overall structure of American government they should not be subjected by Congress to the indignity of facing lawsuits seeking money damages in federal courts by individuals alleging violations of federal laws.

Once a reliable member of the so-called "federalism five," O'Connor is now viewed by some analysts as open to being wooed by either side in these cases.

It isn't that O'Connor has changed her mind about federalism and is second-guessing her earlier votes, legal analysts say. Rather she has apparently reached what she views as the limits of an acceptable federalism push, they say.

"This is just a very Justice O'Connor approach to things to say, 'No we don't have to go all the way down this road,' " says Thomas Goldstein, a Washington lawyer who specializes in Supreme Court cases and who was part of the winning team in Monday's case.

Recent victories for national power at the high court, he says, don't represent a U-turn on federalism. "It is simply, we've reached the end of the road.... We are now learning where the course ended all along for the majority."

Michael Greve, director of the federalism project at the American Enterprise Institute in Washington has a similar view. "If you look at the structure of these [federalism] cases, and the arguments on which they rest, it's hard to see how they could go much further," he says. …


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