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The Supreme Court Issue

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The hollowness of the conservatives' concern for states' rights was revealed in the New York v. United States decision. The radioactive-waste law had been promoted by the states themselves. But Justice O'Connor rationalized that the anticommandeering principle was not for the benefit of the states but to preserve "the liberties" of the people; the states' consent to the law was irrelevant. But how are the people's "liberties" protected when the wishes of their elected representatives are ignored? And is not accountability diminished if those representatives cannot act as they believe their constituents want?

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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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The conservative majority's fickleness toward state interests is not a rare phenomenon. They have had no trouble striking down hundreds of state and local affirmative action plans, voluntary desegregation plans and electoral districting plans that created majority-black districts. And they haven't hesitated to strike down zoning and environmental laws in the name of property rights.

Four years after New York v. United States was decided, the trickle of antifederal decisions became a flood. It began with an attack on the commerce clause, the source of federal power over the national economy. Recognizing the interrelatedness of almost all parts of the economy, the Court had upheld every assertion of federal power under the commerce clause since 1937. In 1995 that changed. In Lopez v. United States the usual 5-to-4 majority struck down a federal law criminalizing the possession of guns in a school zone, because no economic transaction was involved and there was no Congressional finding of an effect on interstate trade. The obvious impact of school violence on the national economy was dismissed, and the fact that most guns move in interstate trade was ignored. Four years later, in United States v. Morrison, the same 5-to-4 majority used the same argument to strike down the Violence Against Women Act: It was not an "economic" matter, even though there was "a mountain of data" that violence against women costs the economy billions each year. Nor did the Court give any weight to the overwhelming state support for the act.

In 1996 the Court also resurrected a state sovereign-immunity doctrine that had been repudiated just seven years earlier. The Eleventh Amendment denies federal courts jurisdiction over suits by citizens of one state against another state. Over the next four years, the conservative bloc used this doctrine, which is based on the now discredited "the King can do no wrong" philosophy, as the basis for allowing a state to halt damage suits against itself by any person, even in state courts, and even if the state engages in what is ordinarily private business that wrongly damages someone. Nothing in the language of the Constitution creates such an immunity, and certainly not for federally created rights. That did not faze these Justices, however, all of whom have regularly excoriated liberal judges as "activists" when the latter sought to promote individual rights and did not stick closely to the text.

The next year, the conservatives turned to the Civil War Amendments. Section 5 of the Fourteenth Amendment authorizes Congress to enforce that amendment by appropriate means. In 1990 the Court narrowly adopted a Scalia opinion overturning a twenty-seven-year-old doctrine by which religious minorities were exempt from having to comply with unnecessary burdens that interfered significantly with their worship (Employment Division v. Smith). Congress responded by almost unanimously passing the Religious Freedom Restoration Act (RFRA) to reinstate that possibility.

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