The politics of judicial restraint : the Rehnquist court and the new federalism

Chief Justice William H. Rehnquist and the Supreme Court under his leadership have been charged, respectively, with leading and enacting a federalism revolution. From the beginning, Rehnquist, first as an associate justice and later as Chief Justice, has displayed a commitment to notions of constitutionalism, originalism, and federalism. In the years before Rehnquist joined the Supreme Court, the idea of federalism, what Felix Frankfurter described as the happy relation of States to Nation, certainly underwent numerous transformations, altering it from what was originally intended into a doctrine far friendlier to the expansion of national power at the expense of the States. It is essential to understand these changes and their broader consequences for federalism doctrine in order to grasp the true implications of the federalism jurisprudence of Rehnquist and the Rehnquist Court. At the most basic level, Rehnquist upholds the notion of State sovereignty as a general principle rooted in the idea that the text of the Constitution has a fixed and knowable meaning, one that constrains both the Court and Congress. The Rehnquist Court\u27s federalism cases can be divided into two categories: institutional federalism cases, and rights-based federalism cases. It is the former cases that constitute the new federalism of the Rehnquist Court. Inrights-based cases the Court generally shuns the argument of State sovereignty, due largely to the swing votes ofjustices O\u27Connor and Kennedy, who often are persuaded to join their federalist colleagues Rehnquist, Scalia, and Thomas in institutional cases, but advance what they consider to be more pragmatic reasoning in rights­ based cases. As a result, the federalism jurisprudence of the Rehnquist Court is ultimately more a commitment to the ideas ofjudicial restraint than it is a commitment to federalism for federalism\u27s sake. The so-called federalism revolution of the Rehnquist Court has not been a revolution at all, but merely a stop-gap measure by the majority of the Court trying to limit further expansion of the national government in particular areas. Concerns over a wholesale reversal or rollback of national prerogatives are largely unfounded for numerous reasons, not least that the federalist triumvirate on the Court is not able to unite a consistent majority in federalism cases. Without such a majority, it seems unlikely that either Rehnquist or the Rehnquist Court will seriously engage in the reconsideration of significant precedent cases that could, in fact, produce a true federalism revolution