WASHINGTON, July 10 (UPI) -- Throughout its recently completed term, the Supreme Court consistently handed down opinions that generally favored constitutional limits to federal power. Nevertheless, the justices have yet to establish a clear doctrine regarding federalism, according to a panel of legal experts at recent Washington think tank forum.
"In recent years the Supreme Court has engaged increasingly in judicial review of federal statutes," said Evan Caminker, a professor at University of Michigan Law School who is considered a liberal legal scholar. "In the last seven years the Supreme Court has invalidated parts of 11 statues on federalism grounds."
Caminker's comments came at a July 9 forum titled "Is Federalism Passé? The Supreme Court's 2001-2002 Term," sponsored by the conservative American Enterprise Institute.
During this past session, the Court reviewed cases that were recognized as important and that dealt with a range of federalism-related issues including the pre-emption of state codes by federal law; the sovereign immunity of states; and the ability of individuals to challenge federal and state government edicts in court under the 11th amendment to the Constitution.
In recent years, the Court's decisions in favor of state sovereignty over federal intrusion have typically broken down across clear doctrinal lines between pro-federalist and anti-federalist justices. But the experts on the AEI panel pointed out that the federalist-leaning justices have been willing to ignore their leanings in a variety of cases when it has served them politically.
The current view is that the on constitutional issues regarding the balance of state and federal authority, the Court is divided between the "federalist five" justices (Chief Justice Rehnquist and Justices Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas) -- who are generally thought of as conservative and typically in favor of less federal power over states -- and the more liberal "nationalist" or "fab four" minority (Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens) -- who are generally in favor of more federal power over states.
Some analysts believe that although the Rehnquist-led majority has established a clear mission aimed towards limiting federal power -- along with a constitutional interpretation that leans towards decentralized government -- it has not made rulings that can produce significant results.
More liberal observers argue that this lack of a clear doctrine exists because some of the Court's decisions to overturn Congressionally approved laws were not based solely on a Constitutional interpretation of the power of the legislative-branch, but were also a way to flex judicial muscle to show that the Court has greater authority over the law than Congress.
Walter Dellinger, a liberal legal scholar and professor at Duke University School of Law, said though there is some genuine sense of federalism in the Court, he believes that some of the Court's rulings in favor of state's rights or limited federal power have come not from clear Constitutional interpretation, but from a sense of judicial authority.
"I do think that judicial supremacy will be the defining theme of the Rehnquist court," Dellinger said at the forum.
Caminker says that the Supreme Court's feelings about Congress are best summed up by the famous Mark Twain line: "Reader, suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself."
"What is troublesome is that the court is responding by building into (legal) doctrine its distrust of Congress in a way that fails to appreciate Congress's constitutional functions and responsibilities," said Caminker.
He believes this lack of respect for the power of Congress causes harm to the relationship between the two branches of government, as well as to the balance between the two branches established in the Constitution.
But according to Michael Rappaport, a conservative professor at the University of San Diego School of Law, the common view of the Court found in law reviews and in the media -- that it has five federalist-inclined judges who show a disrespect for Congress while pursuing an agenda of striking down federal laws, and four liberal nationalist-inclined judges who are restrained and principled in such matters -- is backwards.
Rappaport characterized as "unfounded" the arguments that the "federalist five" justices are being judicial activists. Instead, he believes that the so-called "nationalist four" are the real radicals because their rulings essentially allow for no limits on federal power.
"I think the nationalists are pursuing an agenda that is radical, reactionary and activist," said Rappaport.
He argues that their approach to the Constitution and the language of their dissenting opinions is steeped in the ideals of the New Deal, a political era that resulted in the expansion of federal powers to a level previously unseen in American Constitutional law -- an expansion that, he says, should be reversed.
"The federalist (justices) are not ignoring Congress, they are actually taking the political world quite seriously," said Rappaport "To my mind there is no activism. They are prudently and pragmatically seeking to restore the original meaning of the Constitution."
The ideological divide over interpretation aside, John Harrison, a conservative professor at University of Virginia School of Law, believes that although issues of federalism are a key part of all aspects of the law, the Supreme Court's decisions in these matters are not likely to result in many significant changes to the federal government in the near term. He believes that it is a rare decision that changes the actual structure of the government to the degree that it has a strong impact.
"Most of the time the Supreme Court doesn't matter all that much," said Harrison. "I don't expect the court to be making a big difference in the next five years or so."
As to the Court's apparent lack of a coherent doctrine on federalism, Harrison argues that the lack of a political consensus on the proper Constitutional separation of federal and state power makes it impossible for the Rehnquist court to develop a clear stance on the issue.
"That is the first lesson of American Constitutional law, he said. "What they (the Supreme Court) do is act on behalf of (fairly) well-established political views."
