Sandra's Day: Why the Rehnquist Court has been the O'Connor Court, and how to replace her

National Review, June 30, 2003 by Ramesh Ponnuru

Conservative lawyers consider the federalism revolution the most valuable part of the Rehnquist Court's legacy. O'Connor's record on federalism is not without the ambiguities one would expect from the rest of her jurisprudence. She has sometimes held the revolution back - - as in U.S. v. Lopez, a 1995 case that is something of a landmark. The Constitution gives Congress the power to regulate commerce among the states. In Lopez, the Court ruled that the Gun-Free School Zones Act was not a legitimate exercise of this authority. The Court had not imposed a limit on congressional power under the commerce clause in six decades. O'Connor, the swing vote, joined a concurring opinion that appeared to weaken the Court's conclusion and left the law unsettled.

Notwithstanding such episodes, O'Connor can fairly be said to have not only participated in but even led the revolution. Her strong dissent from the federal drinking-age case in 1987 was a harbinger of it. And one of its signal accomplishments was the doctrine, announced by Justice O'Connor in Gregory v. Ashcroft (1991), that federal law will not be read to compromise the sovereignty of state governments unless the law includes a clear statement to that effect.

Unfortunately, the Court's federalism revolution isn't all it's cracked up to be by legal conservatives. Michael Greve of the American Enterprise Institute has noted that the Court's federalist decisions partake of romanticism about "states' rights." These decisions contain many references to the "dignity" of states. The Court's assumption is that it can protect federalism by protecting state governments. As a consequence, the Court has been inattentive to the "horizontal" dimension of federalism: to the constitutional provisions that promote competition and accountability among state governments by constraining their power. If Eliot Spitzer wants to nationalize American industries from the New York attorney general's office, the Supreme Court is not going to stop him. The O'Connor Court's federalism is not that of the Founders.

How legal conservatives convinced themselves that federalism could be restored by the federal judiciary is one of the minor mysteries of the age. The O'Connor Court is itself a significant offender against federalism, just as its predecessors, the Warren and Burger courts, were. When the voters of Colorado passed an amendment to the state constitution opposing certain gay-rights laws, the Court's response was to slap them down. On abortion, the Court -- O'Connor very much included -- is "hysterically nationalist," as Robert Nagel argues in The Implosion of American Federalism. When seen against this backdrop, the "federalism revolution" starts to look less like a readjustment of state-federal relations and more like a transfer of power from Congress to the Court.

A highly developed institutional amour propre may be the most striking feature of the O'Connor Court. It is present in the plurality opinion in Casey, which O'Connor joined. The Casey Court reaffirmed Roe in large part out of a reluctance to give in to the Court's critics. Appearing to capitulate would compromise the Court's ability to "speak before all others" for the nation's constitutional ideals. It is this self-regard that brings together O'Connor's penchant for finicky edicts, the O'Connor Court's marked reluctance to overturn the activist precedents of the Warren and Burger courts, the Court's racial cases, and its intervention in the 2000 election. There is an authoritarian streak in this jurisprudence that Justice O'Connor does not, in all likelihood, perceive.