Going Right by Using States Rights

The U.S. Supreme Court returns tomorrow and, so far, it has only one high-profile matter on its calendar: the Piscataway, N.J., school board’s decision to retain a black high school teacher over an equally qualified white instructor in order to promote academic diversity. Though seen primarily as a civil-rights case, it also involves state and local rights, which, in recent years, have become one of the court’s primary concerns.

States-rights promoters have always portrayed themselves as defenders of freedom against a power-hungry national government. When the Southern states seceded, they claimed it was in the name of freedom.

States righters’ real interests, however, were usually more mundane: money, power and privilege. These more earthy concerns underlie their recent assaults on the national government in both Congress and the courts, and are part of a long-standing conservative campaign to curtail the regulatory system established by the New Deal under President Franklin D. Roosevelt and later administrations.

The judicial role in this campaign began 20 years ago, when a 5-4 majority, led by then-Justice William H. Rehnquist, overturned a law bringing state and local employees under the Federal Fair Labor Standards Act. The conservative drive stumbled, however, when the court’s ruling proved unworkable, and, in 1985, it was overturned.

In 1992, the conservative justices, by that time a majority, resumed their crusade. A 1992 decision allowed New York state to refuse to implement a federal statute regulating radioactive waste. A 1995 ruling overturned a federal law banning guns near schools, the first narrowing of the “commerce clause” in 60 years. A 1996 decision read the 11th Amendment to prevent federal courts from hearing suits against states that violated federal laws. Last June, the court overturned the Religious Freedom Restoration Act (RFRA), thereby relieving state and local officials from having to justify a refusal to provide a religious exemption from generally applicable laws or regulations.

These rulings affect much of American life. Lower courts have used the 1992 radioactive-waste decision to strike down laws against lead contamination and excessive timber exports; the “Motor Voter” law, the Clean Air Act and the Child Support Recovery Act have also been challenged and are being litigated. This past June, the Supreme Court used the decision to nullify the Brady bill provisions requiring local officials to do background checks on gun buyers. An increase in deaths and injuries is not unlikely--in 1996, the checks produced some 70,000 denials, about 47,000 for felony convictions or indictments.

The 1996 11th-Amendment decision also had a heavy impact, forcing federal judges to dismiss suits for state violations of fair labor standards, environmental, trademark, bankruptcy and other laws, seriously weakening those laws where the state is the wrongdoer. Even if the state allows itself to be sued in its own courts, which it may not, complainants face strong bias in favor of local officials in those courts.

The effects of the court’s RFRA decision will be even more widespread, for it gives state and local governments virtual carte blanche in many matters affecting religious practices. It has already been used to deny religious counseling to a Nebraska prison inmate, which the prison had agreed to allow when RFRA was in effect. Experience indicates that more state interference with religion is now inevitable. Before the act, prisons refused to allow prisoners to wear small crucifixes and restricted religious literature. A Catholic hospital was forced to teach how to perform abortions. Zoning and other land-use regulations were used to harass religious groups helping the poor, particularly non-mainstream sects.

Nor is religious freedom the only right affected. The court’s restrictions on congressional power to protect individual rights against state infringement apply to other rights as well, such as freedom of speech and the press.

This recent resurrection of states rights is not based on a specific constitutional provision or on any newly discovered evidence of original intent. States righters invoke the 10th Amendment, but this simply “reserves” to the states the power not given to the national government. It says nothing about what is “reserved,” and even Justices Sandra Day O’Conner and Rehnquist, the leading states-rights enthusiasts, admit that the amendment is just a “tautology,” not a source of power. Instead, they have relied on their own conceptions of “constitutional policy,” “federal structure” and “state integrity”--amorphous notions with no agreed-on meanings.

The 11th Amendment, which keeps suits against states out of federal courts, has been given an even more dubious reading. Though it expressly excludes only suits by out-of-staters, the court has rewritten it also to exclude suits by in-staters. Moreover, historical research indicates it was to apply only against state-law suits, not to suits based on federal law, as the court has done.

The conservative rulings thus represent an extreme case of “judicial activism,” just the kind of disregard of democratically elected officials for which right-wing states righters assail “liberal” judges. Yet, no criticism has been heard from them about these decisions.

States-rights adherents have always been a rather fickle lot, however. Antebellum Southerners who tried to impose a gag rule on Congress to prevent any debate on slavery also demanded that the federal government vigorously enforce the Fugitive Slave Law against recalcitrant Northern states and strike down anti-slavery laws. Today, Republicans, many of whom demand that the federal government be restricted to national defense and mailing out subsidy checks, also want a federal law limiting product liability on behalf of business interests, traditionally the subject of state law. Some are also pushing a law allowing federal judges power to set aside state and local environmental and other regulations that impinge primarily on the rights of real-estate developers.

Supreme Court justices are equally flighty. While trumpeting the importance of state and local integrity and decision-making as the basis for American freedom--a claim repeatedly undercut by such realities as state resistance to desegregation--when it comes to civil rights for minorities, the conservative justices lose their enthusiasm for state and local decision-making. In 1989, for example, they struck down the Richmond, Va. City Council’s plan to set aside some government contracts for minorities--thereby nullifying more than 200 similar programs in other states and localities. They have also nullified all the electoral districts favoring minorities that they have examined--though districting is one of the most sensitive of all state functions, and the court usually stays out except to assure rough numerical equality.

The Piscataway case captures many of these conflicting pulls. In decisions as far back as 1974 limiting judicial authority to desegregate local systems, Rehnquist and others have stressed the importance of local control of school policy and the need to reduce federal court intrusion. In Piscataway, the school board--which is elected--was forced to dismiss one of two equally qualified high-school business teachers. With a 10-person business education faculty that had only one black teacher, the school board decided to obtain some minimal diversity by keeping the one black.

This was the sort of educational judgment schools make all the time. Had the board made the choice on the basis of age or residence, or just flipped a coin, there would have been no problem. But because it sought to foster racial diversity in the school--the goal of more than 40 years of school desegregation efforts--its judgment was overridden by the lower courts.

Piscataway would seem the kind of case where a respect for local decision-making and the virtues of judicial self-restraint would both point toward upholding the board’s decision. Will the states-rights supporters on the Supreme Court, who repeatedly preach the need for judicial restraint, vote accordingly? We’ll find out next year. But I would not bet on it.*