States' rights momentum on court may be waning

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.

But some analysts say it is much too early to listen for the death knell of the federalism revolution. "It certainly suggests the momentum is not as strong as it once was," says John McGinnis, a constitutional law professor at Northwestern University School of Law. "Maybe I am a little cautious here - but one wants to wait. I don't think we will know for another two years."

Professor McGinnis says the real test of the federalism resolve of the high court's conservative wing will come in major commerce-clause cases working their way to the high court. If the court agrees to take those cases, all eyes will be on O'Connor.

"O'Connor is pretty serious about federalism," McGinnis says. "I am a little skeptical that she is just going to roll over in these other [federalism] cases."

O'Connor isn't the only member of the court facilitating a measure of transition at the high court on federalism issues. In Monday's decision in Tennessee v. Lane, Justice Antonin Scalia announced in a dissent he would no longer follow the test established by his conservative colleagues on the court to measure whether Congress had properly abrogated state sovereign immunity while imposing national jurisdiction upon the states.

In Justice Scalia's view, Congress may only abrogate state sovereign immunity when the states are involved in violations of constitutional rights.

Under the court's existing "congruence and proportionality" test, Congress may be justified in regulating a wider sphere of activities within a state in an effort not just to address constitutional violations but to prevent such violations. The test empowers the court itself to second-guess Congress, by leaving it up to the justices to decide whether the federal law in question is congruent and proportional to the problem being addressed.

"The 'congruence and proportionality' standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking," Scalia writes. "Worse still, it casts this court in the role of Congress's taskmaster."

McGinnis says Scalia's new position is aimed at steering the court toward a more consistent approach.

Goldstein says it is significant that no other justice joined Scalia's dissent. "He is trying to plant seeds that may bear fruit in decades, but he doesn't have any takers in the short term," Goldstein says.