But instead of worrying about what they've got coming, liberals should take a moment to regret what they're about to lose. Rehnquist, it turns out, may be retiring just when liberals need him most. In a government and a judiciary dominated by activist conservatives, Rehnquist's vision of states' rights and a limited federal government might have been the best way during the next few years to keep beleaguered blue states beyond the reach of red-state values.
Mulhauser thinks federalism might have served the interests of liberals, and that only Rehnquist really made federalism his cause:
It is Rehnquist and only Rehnquist who has been the driving force behind the Court's sudden solicitousness towards states' rights.
Scalia, Mulhauser writes, only really champions originalism and Thomas, only textualism. Of O'Connor and Kennedy, Mulhauser says nothing. Nor does Mulhauser have a word to say about Rehnquist's own lack of regard for federalism values in Nevada Department of Human Resources v. Hibbs.
The notion that Rehnquist is uniquely strong on federalism doesn't seem quite right to me. It's true that the different Justices have their own methodologies of interpretation and that Rehnquist's federalism, as opposed to Scalia and Thomas's, has more to do with an actual appreciation for the positive value of decentralized decisionmaking--it's more pragmatic and normative. But the same can be said of Justices O'Connor and Kennedy's federalism. Kennedy, notably, stood staunchly by federalism values in Hibbs, when Rehnquist bent to the popularity of the federal Family and Medical Leave Act. And O'Connor showed more interest in federalism values than Rehnquist in South Dakota v. Dole, the most important case about the crucial matter of imposing conditions on federal spending (there, pressuring the states to adopt 21 as the drinking age).
As to Scalia, I remember the time a few years ago that he gave a speech at my school. He made his theory of original interpretation his subject, as he often does, and took pains to refute the label "strict constructionism," which people (including President Bush) wrongly stick on him. With a chance to ask a question, I invited him to take a position on two other things often associated with him: judicial restraint and federalism. As I expected, he restated the point that the Constitution means what it means and must be enforced whatever it is, without any leaning caused by these other forces. Notably, he responded first on judicial restraint, and then had to ask what the other thing was. Prompted, he went into an irrelevant prerecorded loop about how the original Federalists were for strong national power and how the Federalist Society got its name. He did not seem interested in federalism at all!
Nevertheless, strong originalism (or strong textualism) often gets you to more state and local autonomy than the more flexible, pragmatic approach taken by Rehnquist (and O'Connor and Kennedy). So it's just not at all as simple as Mulhauser would have it.
UPDATE: I've corrected the case name South Dakota v. Dole, which somehow, despite having taught it fifteen times, I managed to call South Carolina v. Dole. Thanks so much to my great 1L son John Cohen for pointing that out.
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