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The Supreme Court Issue

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The Rehnquist Court has revived Ronald Reagan's attempts to gut the New Deal, Great Society and civil rights laws enacted to help the have-nots of American society. Its weapon of choice has been the states' rights doctrine. Just as during the New Deal, when this doctrine was also invoked against the expansion of federal power that was used in the interests of ordinary people, the Rehnquist Court's seemingly neutral states' rights rhetoric and argumentation have been a fig leaf to cover up more tangible interests like race and money.

About the Author

Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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This is not new. Throughout our history, states' rights rhetoric has been used for regressive causes. It has been an especially favored strategy since the Civil War, because the two great transfers of power to the federal government at the expense of the states, at which this strategy has been aimed--the post-Civil War amendments and the New Deal--have also been reform movements threatening conservatives with respect to race and class.

The anti-Washington leader on the Court is Chief Justice William Rehnquist. Raised in a Roosevelt-hating family, he has been an archconservative since his earliest days. His first opportunity to strike at federal power came in 1976 in National League of Cities v. Usery, a case involving the 1974 amendments to the Fair Labor Standards Act, which extended minimum-wage and maximum-hours requirements to state and local governments. Cobbling together a 5-to-4 majority, he got the Court to strike down the 1974 extension.

For authority, Rehnquist looked to the Tenth Amendment, which provides that "the powers not delegated to the United States by the Constitution...are reserved to the states." The amendment does not, however, specify what is "reserved," so Rehnquist created a new doctrine based on the "policy" of the Tenth Amendment, which he said authorized the courts to prohibit the federal government from regulating the states' "traditional functions" if doing so "impaired their sovereignty" and "their ability to function effectively in a federal system."

The result was judicial confusion, as courts struggled with these vacuous criteria. After nine years, the Court overruled National League of Cities, but in 1990 the tide turned again. Avoiding constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft interpreted a federal law banning age discrimination as not applying to state judges.

After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia on the Court in 1991, cementing the conservative majority, the constitutional assault on federal power went into high gear. The first target was a radioactive-waste-disposal statute, which was based on a compromise that the states themselves, including New York, had hammered out. The act imposed sanctions on those states that didn't implement the statute, and for this reason, the majority struck it down in New York v. United States (1992). Unable to rely on specific language in the Constitution, the majority used its own conception of the constitutional "framework" and "structure," and condemned the act for "commandeering" state officials to implement it, ignoring in the process numerous historical examples of state implementation of federal laws. "Accountability is...diminished" by such state enforcement, said Justice O'Connor for the Court, arguing that state officers who had to implement burdensome federal directives would be blamed for them. The argument is ludicrous--people in the radioactive-waste business knew the rules were set by the Feds. The Court used the same dubious "accountability" reasoning five years later in Printz v. United States to slap down the Brady gun control bill's requirement that local law enforcement officers check the backgrounds of prospective gun purchasers.

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