The Court’s Aggressive Expansion
of States’ Rights
Most of this book deals with the Supreme Court’s purported passivity: its multiple avoidance techniques deployed in many areas of constitutional law. But the Court was also aggressive and active in some areas from the 1970s through 1990s, issuing broad new rules and signifi- cantly revising constitutional doctrines. This is most obvious in the criti- cal area of federalism. Federalism concerns the balance of power between the states as independent sovereigns and the national government. By the 1990s, the Court had become extremely direct and adamant about trans- ferring power from federal branches to the states in interpreting the Tenth, Eleventh, and Fourteenth Amendments. As Justice Kennedy sum- marized: “Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the states in a manner consis- tent with their status as residuary sovereigns and joint participants in the governance of the Nation.”1
Despite the declining number of cases in which the Court accepted certiorari during the 1990s, many of its constitutional rulings involved federalism issues. Moreover, these rulings are among its most important because of their breadth, marked revision of existing constitutional doc- trine, and substantial impact on numerous state and federal government actors. For example, in June 1999, the Court issued a trio of significant states’ rights rulings, with the justices splitting 5-4. Justices Kennedy, O’Connor, Scalia, Thomas, and Chief Justice Rehnquist have formed a solid states’ rights majority. In a dramatic end to the Court’s term, three dissenters read their opinions from the bench, highlighting the majority’s departure from established federalism doctrines.
To demonstrate the magnitude of the federalism changes, this chapter first summarizes the post–New Deal state of federalism law. Since the mid-1930s, the Court generally has shown great deference to the other