Court Plays the ‘States’ Rights’ Card

In its final opinions of the term, the U.S. Supreme Court, in a series of passionately disputed 5-4 rulings, dramatically expanded the power of states to disregard federal laws. The court majority held that Congress cannot authorize individuals’ suits against states in their own courts for violations of federal law. According to these justices, permitting the federal government to authorize such suits would violate the states’ “sovereign immunity.”

In 1996, the same five-justice majority ruled that individuals cannot sue states in federal court for violations of many federal laws. Thus, the effect of Wednesday’s court actions is basically to immunize states from the reach of most federal laws. Thanks to the court, aggrieved parties have no courtroom in which to seek relief.

These decisions are part of a broad legal counterrevolution that the so-called conservative justices are now waging under Chief Justice William H. Rehnquist. Just as the central enterprise of the Supreme Court under Chief Justice Earl Warren was to impose on the states, especially in the South, federal constitutional standards for protecting equality and liberty, so the central enterprise of the Rehnquist court has been to reconfigure the balance of power between states and the federal government in favor of “states’ rights.”

In American history no issue has been more divisive. The principle of states’ rights provided the legal lifeblood for slavery, and it required a civil war to settle the question of whether the “Union” established by our Constitution is a creature of the American people as a whole or rather a contract among component states. More recently, states’ rights has served as a legal excuse for those who would circumvent the constitutional amendments enacted after the Civil War providing “equal protection of the laws.” Now the Supreme Court has shown itself unbridgeably divided between those justices who view states’ rights skeptically, through the prism of the Civil War, the resistance to Brown vs. Board of Education and the growth of the modern administrative state, and the five justices who harken back to pre-Civil War Jeffersonian notions exalting state sovereignty.

With several potential landmark states’ rights cases already pending next term, the court’s recent rulings imperil any number of major federal statutes--from the Violence Against Women Act to the requirement that states pay workers the federal minimum wage. More broadly, given the historical pedigree of using states’ rights to trump individual rights, the court’s decisions anticipate a continuation of the rollback in civil rights, especially in the area of race, already launched by the current court majority.

Independent of these considerable consequences, the decisions last week are significant in another aspect as well. The character of the Supreme Court is measured not only by the outcome of its decisions, but by the methods and reasons justices use to support their decisions. We give nine unelected, life-tenured justices enormous power to decide our fundamental legal disputes because we believe they wield powers of reason and wisdom that elevate their decisions above the trade-offs of everyday politics. Thus, when the justices invoke intellectually dishonest arguments, engage in inconsistencies or otherwise reduce their decisions to the shallow calculus of five votes beats four, they call into question the broad authority entrusted in them. Regrettably, when the justifications for last week’s ruling are examined, what emerges is a picture of a radical court hellbent on championing states’ rights at the expense of the court’s intellectual integrity and legitimacy.

Scholars and judges disagree about how to interpret the Constitution. Some believe the text is the most significant factor in determining its meaning. Others look primarily to the views of the founding fathers. Still others make interpretive claims, based on the structure of the government that the Constitution established or on history subsequent to the founding, including the court’s precedents. Liberal justices such as the late William J. Brennan Jr. explicitly infused the Constitution with their sense of contemporary values.

In the modern era, conservative justices such as Rehnquist, Antonin Scalia and Clarence Thomas--all members of the five-member majority behind last week’s decisions--have purported to champion two interpretive methods: textualism, a commitment to stick strictly to the Constitution’s text; and originalism, a commitment to defer to the views of the framers. Thus, for example, these justices have repeatedly called for overturning Roe vs. Wade because the text of the Constitution does not include a “right to privacy,” much less a specific right to abortion, and the framers, they claim, did not contemplate such a right. But, as a look at the court’s recent states’ rights decisions makes clear, this purported allegiance to text and original intent--the approaches that supposedly define these justices as “conservatives”--appears a matter of convenience or, far worse, a sham.

Take, as a starting point, Rehnquist’s opinion in the 1996 case, Seminole Tribe of Florida vs. Florida, where the majority, invoking the 11th Amendment, held that Congress usually could not authorize suits against states in federal court. To reach this conclusion, Rehnquist actually had to ignore the text of the 11th Amendment. That amendment only protects states from suits in federal court when those suits are brought “by citizens of another state, or by citizens or subjects of any foreign state.” In short, the amendment does not prohibit federal court suits brought against a state by its own citizens.

Nor could Rehnquist place much reliance on the views of the 11th Amendment’s framers. As the dissenters in Seminole argued powerfully, the historical evidence indicates that the framers did not intend it to prohibit Congress from authorizing suits against individual states in federal court. Accordingly, the linchpin of Rehnquist’s Seminole opinion was neither text nor originalism, but rather precedent, in particular a much-criticized 1890 decision in a case called Hans vs. Louisiana, which expanded the 11th Amendment to broadly limit suits against states in federal court.

And what about the court’s decisions last week invoking state sovereign immunity to shut down federal lawsuits in state courts? Here, again, the majority cannot base its argument on the Constitution’s text. The Constitution never mentions state sovereign immunity. Rather, Justice Anthony M. Kennedy, in his opinion in the lead case, purports to “look first to evidence of the original understanding of the Constitution.” But, as Kennedy must admit in the next sentence, “the historical record gives no instruction as to the founding generation’s intent to preserve the state’s immunity from suit in their own courts.” Yet, Kennedy transforms the framers’ silence into proof of their universal agreement that Congress had no power to override the sovereign immunity of states in their own courts.

The hypocrisy is blatant. The so-called conservatives, especially Rehnquist, Scalia and Thomas, have raised the roof (with reason) whenever liberals relied on the sort of read-huge-import-into-utter-silence arguments that they themselves have now enthusiastically embraced in the states’ rights context.

There is a less obvious shell game being played out as well. In the 1996 Seminole decision, the conservatives severely cut back on suits against states in federal court, mainly on the basis of a 100-year-old precedent. Now they have closed down the alternative state-court forum for vindicating federal rights, claiming the framers couldn’t have imagined letting Congress make states subject to suits in their own courts.

The problem with this switch is glaring. Even if the conservatives are right that the framers did not envision suits against states in their own courts, the evidence is strong that the framers believed some judicial forum, namely a federal court, would be available to vindicate federal rights. One cardinal principle of the founding generation, enshrined in Marbury vs. Madison, was the notion that for every legal right there must be a remedy. By largely ignoring original intent when closing off federal courts, while claiming to adhere to original intent when closing off state courts, the justices in the majority have created the one circumstance that is clearly without support in text, originalism, history, structure, precedent or morality: having no court available to vindicate many federal legal rights of individuals.

These doctrinal hi-jinks could come at considerable cost to our entire system of government. When justices choose their interpretive methods not on the basis of consistent principle but as a convenient means for advancing their ideological goals, they call into question the very foundation of the court’s authority. Last week, in rulings that touch on the deepest fault line in our political culture, the justices have come perilously close to doing just that. Come October, when the court takes up these issues again, the nation can only hope the current narrow majority will step back from the unprincipled radicalism by which it seeks to refashion our society. Unfortunately, there is little reason, given last week’s rulings, to believe they will.