Federalism Versus Politics

By Mike Dorf

In my latest FindLaw column, I explain why Monday's Supreme Court decision in United States v. Comstock portends upholding of the individual mandate, if and when a challenge to the federal health care reform legislation reaches the Supreme Court.  Comstock upholds the power of Congress to authorize civil commitment of federal prisoners found to be sexually dangerous (e.g., child molesters), even after their sentences for federal crimes have run.  I explain that the reasoning of Comstock appears to make the individual mandate an even easier case for sustaining federal power.  Nonetheless, I warn that it's not always possible to predict Supreme Court outcomes based on doctrinal analysis of prior cases.  (Think Bush v. Gore.)  Here I want to explore the possibility of a different--more political--explanation for the decision in Comstock and other federalism cases: At least some Justices abandon their views about the scope of federal power when doing so serves their (presumed) substantive policy preferences.  I shall call this the "politics hypothesis."

I'll use as my (admittedly tiny) database the following cases either accepting or rejecting a federalism challenge:

U.S. v. Lopez -- invalidating the Gun Free School Zones Act
U.S. v. Morrison -- invalidating the civil remedy provision of the Violence Against Women Act
Nevada v. Hibbs -- upholding the Family and Medical Leave Act
Gonzales v. Raich -- upholding the application of the federal Controlled Substances Act to marijuana that was locally grown for local consumption.
U.S. v. Comstock

Let's begin with an arresting fact: None of the liberals appears to vote politically in any of these cases: Justices Stevens, Souter, Ginsburg, Breyer, and now Sotomayor (albeit in only one case) vote to sustain federal power in each case, including cases such as Raich, in which they presumably would, on policy grounds, oppose the extension of the federal marijuana prohibition to medical marijuana that is legal under state law.

Note too that Justice Thomas has a perfect record as voting to reject federal power in each of these cases, ruling out the possibility that he is voting politically.  That leaves us with a relatively small number of votes to explain: Cases in which one or more generally conservative Justices who sometimes vote to limit federal power instead vote to sustain federal power.

Let's begin with Hibbs.  It has been suggested that Justice O'Connor voted to sustain federal power in that case because she saw it as a women's equality case, and on such issues, her policy preference runs pro-regulation.  But this seems hard to square with the fact that O'Connor voted with the majority in Morrison, which was even more clearly a women's rights case.  One still-political hypothesis is that Morrison pre-dated Bush v. Gore, after which O'Connor moved left.  But then how do we account for O'Connor's dissenting in Raich, indicating she was sticking with her federalism preferences even at what she would regard as a cost of voting for the challenger to a marijuana law?  If O'Connor's Hibbs vote was political, it was uncharacteristically so.

The same analysis more or less applies to Rehnquist's vote to sustain federal power in Hibbs.  By some accounts, Rehnquist came to appreciate the need for a law like the FMLA when, to help out his daughter, he picked up his grandchildren from school.  Perhaps, but as with O'Connor, it's hard to imagine that, as a policy matter, Rehnquist was for legalizing medical marijuana--and so politics alone would have had him in the majority in Raich; yet he dissented.

Speaking of Raich, it could be invoked as evidence that Justices Scalia and Kennedy, in joining in the decision to sustain federal power, were simply giving vent to their tough-on-drugs preferences.  But the story doesn't work so well for Scalia, in light of his willingness to dissent in Comstock.  Surely he's equally tough on child molesters.

The politics hypothesis thus looks plausible only for Justice Kennedy and possibly for CJ Roberts and Justice Alito based on their votes to uphold the law in Comstock--though it's hard to say much about Roberts and Alito based on just one case.  And even Kennedy's voting pattern is hardly decisive in this regard.  I suspect that he had policy sympathy for the substantive goals of the laws he voted to invalidate in Morrison and Hibbs, but that his federalism druthers simply prevailed.  Moreover, a pretty good doctrinal argument can be made for reconciling all of his votes in these cases.  And add to that the fact that, with O'Connor, Kennedy was never fully gung ho on rolling back federal power (see his concurrence in Lopez), and it's not surprising that he would "swing" on the close cases, even completely ignoring politics.

Bottom Line: The voting pattern provides little to no evidence for the proposition that the Court's federalism decisions are "just politics."  At most, it provides some inconclusive evidence for the influence of politics on Justice Kennedy and even less for CJ Roberts and Justice Alito. For a related argument, readers may wish to look at my 2007 essay for a federalism symposium at St. John's Law School.  Here I'll simply quote the abstract:

Empirical research indicates that factors such as an individual Justice’s general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments—independent of whether the particular outcome in any given case is “liberal” or “conservative”— can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which “conservative” Justices voted to invalidate a strict federal drug provision in light of California’s legalization of medical marijuana and “liberal” Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states’ rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.