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. …