Rehnquist-Led Court Shifts Power to States but Emerging 'Judicial Federalism' Divides Justices

Article excerpt

A COMBINATION of assertive state officials and the conservative wing of the Supreme Court is leading the nation into significant new constitutional waters - landmark rulings that limit federal power and give increased say-so to state capitals. Moreover, as of this week, potential new landmark rulings on behalf of states are on the horizon.

While bitterly opposed by the tribunal's moderates, this judicial "federalism" is quietly emerging as the hallmark of the Rehnquist-led court of the 1990s. Legal scholars now draw a breath to describe the range of challenges offered by conservatives to rethink the historic line between states rights and federal supremacy enshrined in the Constitution's Article 6.

"There is a concerted effort to reexamine the relation between state and federal power across the spectrum of the Constitution," says law professor Stephen Wermiel of Georgia State University. The court announced April 15 it would hear two more cases that could allow states even greater latitude. It agreed next year to decide whether state wage laws in California are superseded by federal standards requiring a higher minimum wage. The court also agreed on April 15 to resolve an Idaho dispute over who controls the waterways within an Indian reservation. As with last month's Seminole gambling decision that limited the ability of Congress to take states to federal court, the Idaho case could signal to state capitals that the court is prepared to give states more latitude and power. Moreover, a recent dispute between two US Circuit Courts of Appeals over the Brady handgun bill will likely force a major court showdown over Washington's power to require local and state police to enforce a waiting period for buyers of handguns. Last year, when the court for the first time in 60 years limited the powers of Congress in a decision (US v. Lopez) dealing with guns near schools, many experts were dubious about the extent of the ruling. Yet the recent Seminole gambling decision, which limits Congress's ability to take a state to federal court, made believers out of many skeptics. "The line of these cases gets longer every day," says Marci Hamilton of New York's Benjamin Cardozo Law School, a former law clerk for Justice Sandra Day O'Connor. "The five conservatives are able to articulate their federalism, and momentum is building in support of the doctrine." Advocates for judicial federalism usually cite the virtues of local control - of a state's unique ability to resolve its own problems, shape its own decisions, and not be a kind of powerless subcontractor for Washington's edicts. The great tool in the federalism kit is the 10th Amendment. …

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