[I]t appears that while he has stood still, the court's center of gravity has moved away from him. One statistic is particularly telling. There were 18 cases this term decided by five-member majorities (17 were 5-to-4 decisions and one, the Pledge of Allegiance case, was 5 to 3 but would surely have been 5 to 4 had Justice Scalia participated; he would certainly have agreed with Chief Justice Rehnquist, in the minority, that the court should rule that "under God" posed no constitutional problem). Of the 18 cases, Chief Justice Rehnquist was in the majority in only eight.
In other words, in the closest cases, one of the swing voters (O'Connor, most likely, or Kennedy) is going to vote with the liberal set of Justices (Stevens, Souter, Ginsburg, and Breyer); the conservative set of Justices (Rehnquist, Scalia, and Thomas) is not able to keep both of the Justices it needs to make a majority. Greenhouse notes the trend:
[This most recent term] contrasts sharply with the chief justice's notably successful term two years ago, when he was in the majority in 15 of 21 5-to-4 decisions. A year ago, he was in the majority half the time, in 7 of 14 cases with 5-to-4 votes ...
She points to Tennessee v. Lane as evidence that Rehnquist's "federalism revolution ... [has] stall[ed] in its tracks." True, the Chief Justice dissented in Tennessee v. Lane, the case that rejected state sovereign immunity with respect to access to courthouses and the Americans With Disabilities Act, but the idea that the Chief was running a revolution headed in a different direction is wrong: he wrote the decision in Hibbs last year, which laid the groundwork for Lane when it found that Congress could abrogate state immunity with the Family and Medical Leave Act. (I have an article coming out on Hibbs, and will put a link to it here when I can.) That is, the Chief too has had cold feet about trusting states to operate autonomously.
The most important case written by the Chief Justice this year (considering the narrow point on which Padilla, his other "major opinion," was resolved) was Locke v. Davey, a case that allowed a state to exclude a student from its college scholarship program because he wanted to study for the ministry. Greenhouse characterizes this case as a falling away from the school vouchers decision of two years ago (which permitted a state to provide vouchers usable in religious schools and rejected an argument that it violated the Establishment Clause). But Locke ought to count as a decision in favor of state autonomy (the "federalism revolution" in Greenhouse-speak). By permitting vouchers (in the earlier case) and not requiring inclusion in the scholarship program (in Locke), the state is given the maximum latitude to experiment in the area of education: both the Establishment Clause and the individual's rights under the Free Exercise Clause were kept small, leaving the state with more autonomy. Where she might have seen the federalism principle at work, Greenhouse sees "pragmatism":
[A]lthough the consequences of turning permissible vouchers into required vouchers would have been profoundly unsettling, the court's recent insistence on an equal place for religion at the public table provided at least a plausible basis for that outcome. Instead, the majority looked at the consequences of carrying the recent precedents to their logical conclusion, and stopped short.
"Pragmatism rather than doctrine seems to be the order of the day at the court now," Greenhouse writes, tagging O'Connor as "the court's leading pragmatist." The suggestion is that the Court's federalism is somehow only doctrinal and bereft of any weighing of real-world effects. But the decision about whether judges should protect state autonomy does entail the pragmatism of thinking about consequences: when is disuniformity and decentralized decisionmaking a problem, and when are state and local governments involved in policy experiments that may improve life for people?
Think about the Compassionate Use medical marijuana law that the Court will resolve next year: do we think there's an answer in "doctrine" here? Surely, for Rehnquist as well as O'Connor, the practicalities of the federal government's drug policy and the possible benefits of marijuana used as medicine--not to mention public support for the autonomy of the seriously ill--will play a strong role in the decision.
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