Future of Federalism Is in Voters’ Hands

October 4, 2004 • Commentary
This article was published in the National Law Journal, October 4, 2004.

A reinvigorated federalism, according to many U.S. Supreme Court watchers, is the most likely legacy of the past 18 years under Chief Justice William H. Rehnquist. The current court–comprising the same nine justices since Stephen Breyer’s appointment in 1994–has invoked federalism to invalidate all or part of the Gun‐​Free School Zones Act, the Brady Handgun Violence Protection Act, the Religious Freedom Restoration Act and the Violence Against Women Act. But perhaps the most intriguing federalism declarations from the court have emerged in nine sovereign immunity opinions over the past eight years, beginning with Seminole Tribe v. Florida (1996) and continuing through this past term’s Tennessee v. Lane.

Notably, in the first seven of the nine cases, the court upheld sovereign immunity, which shields the states from claims for money damages. And the lineup in all seven cases was the same: The five more conservative justices (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O’Connor) opted in favor of immunity. The four more liberal justices (Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg) voted against. Not until Nevada Dept. of Human Resources v. Hibbs (2003) did a crack appear in the rock‐​solid majority that Rehnquist had been able to muster. Not surprisingly, O’Connor became the first defector. Surprisingly, however, she was joined by Rehnquist himself–although it’s possible that the Rehnquist apostasy was a tactical maneuver allowing him to pen a narrow anti‐​immunity opinion rather than risk a more doctrinaire pronouncement from Stevens.

In any event, the chief justice rejoined the pro‐​immunity fold the next year in Tennessee v. Lane. But he was unable to persuade O’Connor to follow, and so he was reduced to writing a dissent from the court’s second rejection of immunity in as many years. That means a core component of the Rehnquist legacy is hanging by a thread. And that, in turn, raises an obvious question: What happens to sovereign immunity–and its close ties to federalism–if, as expected, one or more justices retire? After all, the three oldest justices–Stevens, 84, a consistent opponent of immunity; Rehnquist, 79, a consistent advocate; and O’Connor, 74, who apparently hasn’t made up her mind–might step down.

Ultimately, then, the voters will determine whither sovereign immunity. A Bush victory could lead, if the president is true to his word, to Supreme Court nominees in the mold of Scalia, who has favored immunizing the states in all nine of the court’s cases from 1996 to 2004. On the other hand, a Kerry win will no doubt yield court nominees who more closely resemble the existing contingent of four liberals–all of whom rejected sovereign immunity in each of the same nine cases.

On an issue such as sovereign immunity, which raises vital federalism concerns, the judicial lineup will probably dictate the outcome. Accordingly, it is reasonable to speculate that Rehnquist, because he was unable to sustain his conservative majority in Hibbs and Lane, may have lost control of his own legacy. Depending on future court vacancies and how they’re filled, the demise or rebirth of federalism could please or disappoint conservatives, who want to see further devolution of power to the states, or liberals, who want greater federal involvement in vindicating a laundry list of “evolving” civil rights.

From a libertarian perspective, however, both the conservative and liberal justices are operating without a jurisprudential compass. In Tennessee v. Lane, like its predecessor cases, the court had to resolve whether legislative power under the 14th Amendment trumps sovereign immunity under the 11th Amendment. In Lane, the court got the immunity part right, but for the wrong reason. Tennessee’s claim to immunity was overridden, not by an act of Congress as the court contended, but rather because the 11th Amendment does not confer immunity in federal‐​question cases. By its extra‐​textual reading of the amendment, the Rehnquist court has embraced the pernicious notion that states can violate federally secured rights without being held accountable for monetary losses associated with personal injuries.

On the legislative‐​power question, the court mistakenly found congressional authority under section 5 of the 14th Amendment to enact Title II of the Americans With Disabilities Act, which specifies that disabled persons cannot be “excluded from participation or denied the benefits of the services, programs or activities of a public entity.” George Lane, a paraplegic charged with a criminal traffic violation, had objected because a state courtroom was not wheelchair‐​accessible. In dissent, Rehnquist hit the nail on the head in saying that the mere existence of an architecturally inaccessible courthouse does not state a constitutional violation. “We have never held that a person has a constitutional right to make his way into a courtroom without any external assistance.”

The proper resolution of the sovereign immunity mishmash involves two steps: Restrict the purview of the 11th Amendment to diversity cases in federal court, and mount a frontal assault on overarching central government, confining Congress to those functions that are limited by and enumerated in the Constitution. If the past is prologue, conservative justices will push for expanded immunity, liberal justices will promote inflated federal powers, and the rest of us, sad to say, will be victimized no matter who is elected.

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