Whose Ox is Being Gored? When Attitudinalism Meets Federalism

Empirical research indicates that factors such as an individual Justice\u27s general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is liberal or conservative - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which conservative Justices voted to invalidate a strict federal drug provision in light of California\u27s legalization of medical marijuana, and liberal Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states\u27 rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them