High Court’s Conservatives Change Balance of Power

Few Americans wake up in the morning worried about threats to their state’s “sovereignty” or the fate of “federalism,” the balance of power between national and state authorities.

Yet five justices of the Supreme Court have made these issues their cause, and this week’s final round of rulings for the term showed them determined to return American law to an earlier era.

Beginning four years ago, the court’s conservatives have steadily stripped away power from Congress and federal judges and given the states a new shield of immunity. It is unclear, though, where they are headed. Back to the 1950s, before the expansion of federal civil rights protection? Or to the 1920s, before the New Deal era and federal intervention in the economy?

The court’s four liberal dissenters fear their colleagues are looking to the 1780s, when a weak national government held little sway over the states.

“This is the first time in more than 60 years where we see an aggressive, conservative activism” from the Supreme Court, said Louis M. Seidman, a liberal law professor at Georgetown University. “They have shown themselves willing to overturn decisions made by the democratic process, and they are prepared to do it without any basis in the text of the Constitution.”

Despite their fervor for federalism, however, the court’s conservatives do not always stick together, and this term also saw liberal triumphs in the areas of sexual harassment and welfare benefits.

For example, Justice Sandra Day O’Connor, a champion of states’ rights, is also a historic figure in women’s rights and supplied the decisive fifth vote to rule that schools can be held liable if they ignore the repeated sexual harassment of one student by another.

And sometimes precedent still prevails, conservative activism notwithstanding: In the 1960s, the court ruled that states may not discriminate between new and old residents. This year, a 7-2 majority stuck to that principle and struck down California’s plan to pay lower welfare benefits to newcomers.

But those are the exceptions in a court where states’ rights conservatism remains the driving force.

On Wednesday, the 5-4 majority ruled that the principle of “state sovereign immunity” shielded states from having to pay overtime wages to their workers, as required by federal law. Justice Anthony M. Kennedy admitted the Constitution said nothing about the states having a special exemption from valid federal laws. Nonetheless, he concluded that the “founders’ silence” shows the notion of state immunity was understood and accepted in 1787, when the Constitution was written.

The resurgence of states’ rights has been called the third wave of Supreme Court activism during this century.

Pro-business conservatives controlled the court during the first decades of the 20th century. They regularly struck down state and federal laws that, for example, sought to halt child labor or ensure minimum wages and maximum hours for workers. They said the Constitution did not allow the government to regulate business, although they could point to no provision that said so.

This is known as the “Lochner era” among lawyers, which refers to a 1905 ruling that threw out a New York law that set a maximum 10-hour day for workers.

This era came to an end in 1936, after the conservative court and President Franklin D. Roosevelt came into open conflict. On a series of 5-4 votes, the court struck down several New Deal laws, and FDR wanted revenge.

A year later, the court reversed itself, as Roosevelt replaced the “nine old men” with liberal appointees.

The next wave of activism was liberal. Under Chief Justice Earl Warren, the court wielded its power to strike down racial segregation laws, to throw out official prayers in schools and to expand the rights of criminal defendants. This era peaked with the 1973 Roe vs. Wade ruling, which struck down laws banning abortion.

In that case, the liberals were unable to point to a constitutional provision that created a right to abortion. A few years before, when striking down an archaic state law that barred the sale of contraceptives, Justice William O. Douglas said a right to privacy was contained in the Bill of Rights. Those words were not mentioned, he said, but privacy could be found “emanating” from the “penumbras” around the individual rights.

Even since, those words are an inside joke among conservatives who mock liberals for inventing new rights. According to friends, Justice Clarence Thomas keeps a sign in his office that says, “Don’t water the penumbras.”

The latest wave of conservative activism began in 1995, and its unquestioned leader is Chief Justice William H. Rehnquist.

As a young Arizona lawyer, he got a start in politics as a legal advisor to Sen. Barry Goldwater, who captured the Republican presidential nomination in 1964. Goldwater, too, preached states’ rights and opposed the Civil Rights Act of 1964, which outlawed racial segregation in hotels, restaurants and other public businesses and made it illegal for employers to discriminate based on race. Goldwater maintained Congress had no power under the Constitution to pass such a law.

Though Goldwater was soundly defeated in the general election by Lyndon B. Johnson, Rehnquist later came to Washington to work for President Nixon and was sent to the court in 1971. President Reagan named him chief justice in 1986.

Four years ago, Rehnquist put together a 5-4 majority to strike down a new federal law that outlawed guns near schools. The ruling marked the first time since 1936 that the court had thrown out a federal law on the ground that Congress did not have the power to enact it.

A year later, the same 5-4 majority struck down part of the Brady Act on handgun sales, then overturned a new federal law to protect religious liberty. A third decision declared states had a “sovereign immunity” and generally could not be sued in federal court.

This week’s rulings pressed forward the trend in three important ways. Before, state courts were still open to those who said their federal rights had been violated by a state agency. The 5-4 ruling in Alden vs. Maine closed that door. The decision appears to leave 4.7 million state employees with no practical way to enforce their rights under federal law.

Second, the justices made clear they would not protect private businesses when state agencies stole their property. The Constitution gives Congress the power to protect patents and copyrights, and laws were passed to enforce those property rights. But in College Savings Bank vs. Florida Prepaid, Rehnquist said those laws cannot be enforced against states.

And, third, the court made clear Congress had no power to remedy the matter.

The next test will come in the fall when the court considers whether federal antidiscrimination laws protect state workers. Several professors and librarians at Florida State University say they were victims of age discrimination. At issue, however, is whether the law covers a state university (U.S. vs. Kimel).

Harvard law professor Laurence H. Tribe says he fears basic civil rights protections could be in jeopardy if the trend continues.

“Activism doesn’t even describe these holdings. They are extraordinary,” he said.

State experts and conservative scholars, however, say the court is simply upholding the Constitution’s separation of powers.

“This is not a revolution,” said Richard Ruda, counsel for the State and Local Legal Center in Washington. “This reaffirms the system of dual sovereignty of the states and the federal government.”

For this term, the last words from the court on this subject were spoken from the bench by dissenters, who took turns jabbing back at the conservatives.

Justice John Paul Stevens accused the Rehnquist majority of finding the notion of state sovereign immunity in the “penumbras” of the Constitution.

Justices David H. Souter and Stephen G. Breyer spoke of the Lochner era and its now-repudiated decisions.

“The resemblance of today’s state sovereign immunity [decision] to the Lochner era . . . is striking,” Souter said. Then, an out-of-touch court created a “fictional” world in which individual factory workers were free to negotiate over their wages, he said.

Now, today’s court has created an idealized but fictional world of state governments that are more attuned to the people, he said.

“I expect the court’s late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire,” Souter said, “the one being as unrealistic as the other, as indefensible and probably as fleeting.”

On that note, the justices adjourned for the summer.