The Supreme Court Issue | The Nation


The Supreme Court Issue

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It didn't last long. In a 6-to-3 decision, the Court ruled that Congress had no power to enlarge constitutional rights beyond the limits the Court had set. RFRA failed as a remedy, according to the Court, because it burdened too many state activities too much--even though the states had lived comfortably for over a quarter-century with the doctrine RFRA sought to reinstate.

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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 Supreme Court has given financial institutions and employers a license to do wrong—and it’s hitting the poor especially hard.

Republicans have been blocking Obama's nominations—but the president’s refusal to fight back is part of the problem.

This past term, the conservative majority struck twice at Section 5, once in dismissing a suit by older workers under the Age Discrimination in Employment Act (Kimel v. Florida Board of Regents) and again in the course of overturning the Violence Against Women Act, despite support for the act from thirty-six states. This coming term the Court will consider suits by state employees against a state for violating disability rights statutes; their prospects are bleak.

There have been a few isolated losses for the states' rights bloc: Kennedy jumped ship to make a 5-to-4 majority to strike down a state term-limits law, and this past term the Court upheld a law banning the sale by states of private data collected from driver's-license applications. But such decisions have been few and far between.

Academic commentators disagree on how harmful the conservatives' federalism rulings have been. They have unquestionably spawned confusion and litigation over federalism issues, thereby overburdening a federal judiciary that is already creaking under the weight of its caseload. And a good number of Americans--how many is impossible to tell--have been denied a meaningful remedy for blatant violations of their rights under federal law.

One thing is clear: All of US history demonstrates unambiguously that have-nots and outsiders fare poorly at the state level. The Rehnquist Court's paeans of praise for state government are belied by reality. Voting turnout in state and local elections is notoriously low. Many state legislators are ill-paid part-timers without staff, and are at least as susceptible to lobbyists as Congress, if not more so. Conflicts of interest are rife--one recent study found that one-fifth of state legislators serve on legislative committees that oversee their private businesses. And concern for the poor, the weak and people of color is often negligible or nonexistent.

If the current federalist assault on the federal government continues--and if George W. Bush becomes President it will--those already shortchanged by our society will do even worse.

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