by Christopher P. Banks And John C. Blakeman. Lanham, MD: Rowman & Littlefield, 2012. 362 pp. Hardback $48.99. ISBN 9780742535046.
Reviewed by Susan Gluck Mezey, Loyola University Chicago. Email: smezey[at] luc.edu
This book discusses the myriad legal and political questions arising out of the complex power relationship between the federal government and the states. In fleshing out the interactions between the national and subnational levels of government, Banks and Blakeman painstakingly demonstrate the judiciary’s key role in serving as the umpire of these arrangements.
In a recent review of The Partisan: The Life of William Rehnquist (by John Jenkins), reviewer Michael O’Donnell states “any biography of a judge must confront not only the life, but also the work” (p.35). He continues, noting that “a completely scholarly biography that pinpoints Rehnquist’s legacy as chief justice must await another day” (p.35). The Banks and Blakeman book is not intended as a Rehnquist biography; rather, it is intended to present a broader analysis of the role of federalism in the U.S. In fulfilling this goal, their book nicely fills some of the gaps to which O’Donnell alludes in his review. The reason, of course, is that in writing about federalism during the 1980s and 1990s, one is largely writing about William Rehnquist.
Banks and Blakeman assert that contrary to popular belief, most scholars conclude that the impact of the Rehnquist Court on federalism jurisprudence was “modest at best” (p.88). Nevertheless, their data indicate that the Rehnquist Court was generally more willing to nullify federal law, while being less willing to declare state laws unconstitutional than its predecessors. Moreover, its rulings in federalism decisions were in a more conservative direction than either the Warren or Burger Courts.
Chapter One sets the stage by explaining that federalism decisions go beyond “simple conflicts of power between federal and state sovereigns” and that understanding such decisions requires “defining judicial behavior in political terms” (p.5). They base this premise on the central role of the judiciary in federalism decision-making. Employing a number of research methodologies to demonstrate their point, the authors emphasize that the starting place for gaining this understanding is litigation.
Banks and Blakeman raise the following questions that guide the analysis in the book: 1) is judicial decision-making in federalism cases based only on political considerations (ideology) or on a combination of social, cultural, and legal factors? 2) are the Supreme Court’s decisions in this area evidence of the Court’s judicial activism? 3) what is the effect of globalization on federalism rulings? 4) what is “new federalism” and what role has it played in Rehnquist and Roberts’ Court decisions? [*543]
Throughout we see the importance of the Supremacy Clause in preserving federal preeminence over the states. Ironically, Banks and Blakeman indicate, despite the overwhelming potency of the Supremacy Clause, it was created as a compromise over a “federal veto,” that is, a mechanism whereby the federal government would have veto power over state laws.
Chapter Two, the historical chapter, surveys federalism decision-making by the Supreme Court over time, discussing key cases in each of these eras: the Founding to the Civil War, the dual federalism of the Civil War to the New Deal, the cooperative federalism of the New Deal to the late 1950s, and the 1960s through the present. In the era of dual federalism, the pre-New Deal arrangement where there were strict boundaries between federal and state authority, the Supreme Court was generally unwilling to allow the two sovereign entities to cross those boundaries. In the post-New Deal era, the governing principle was “cooperative federalism,” in which the two governments exercised more or less concurrent powers. With the onset of the civil rights era, that is, the Warren Court, liberals perceived the states’ rights arguments as reactionary efforts to avoid civil rights reform and argued for greater restraints on state authority. This clashed with the conservative approach, largely manifested during the Burger and Rehnquist Courts, which urged greater limits on national authority over the states.
After tracing the path of federalism decision-making by the high court, the book focuses on Rehnquist (before and after his appointment as the chief). Rehnquist created a name for himself in writing on federalism issues early in his service on the Court, but the authors conclude that these initial opinions, most often in dissent, did not have much “impact” (p.88). That situation changed somewhat as Rehnquist assumed the top position on the Court, reflecting in large part, Ronald Reagan’s (and to a lesser extent, Richard Nixon’s) views of federalism. During his long tenure in office as chief, the Court began to favor increased autonomy for the states, strict construction, judicial restraint, and decentralized decision-making. These “new federalism” decisions, in part, reflected a desire to pursue other goals, such as advancing capitalist principles and furthering conservative social values.
Perhaps the most interesting chapter, Chapter Four, features Clarence Thomas, the Court’s all-out federalist. Banks and Blakeman reasonably argue that Thomas uses federalism theory to try to reverse New Deal precedent, seeking to curtail federal authority and return power to the states in a multitude of policy areas. Nowhere is this more evident than in Thomas’ approach to establishment clause jurisprudence. His opinions in these cases demonstrate that he is out of the mainstream in rejecting incorporation of the Establishment Clause, a position to which the Court has adhered since the 1940s. The authors believe it unlikely his view will prevail among the other members of the Roberts Court, most of whom are not as inclined to promote states’ rights as is Thomas.
The next chapter on federalism and foreign affairs shows that, in contrast to rulings exemplifying the “new federalism” jurisprudence, most notably seen in United States v. Lopez (1995) and [*544] United States v. Morrison (2000), the Rehnquist Court did not seek to diminish federal authority over foreign affairs, applying the preemption doctrine fairly liberally in such cases. They suggest that, for a variety of reasons – most external to the Court – there are indications that the Roberts Court may be less inclined to follow its predecessors’ lead in restricting state autonomy over policies with global implications.
Finally, the last chapter on the Roberts Court suggests that it is unlikely to expand the “new federalism” jurisprudence of the Rehnquist Court, but at the same time appears unwilling to disturb it. In part, their evidence for this arises from their analysis of the views of federalism displayed during the confirmation hearings of the two Obama justices, Sonia Sotomayor and Elena Kagan. Both Kagan and Sotomayor expressed their willingness to allow Congress to regulate states under its interstate commerce and spending power authority. . The chapter concludes with a detailed analysis of judicial rulings in preemption, 11th Amendment, and dormant commerce clause cases.
Based on meticulous research, the authors cover enormous ground and provide a huge amount of detail about federalism jurisprudence, largely focusing on the Rehnquist Court’s adherence to the “new federalism jurisprudence.” The highlight of the book for me was the chapter on Thomas’ federalism extremis and the explanation of how this view might translate into other policy areas. This book is not an easy read and even federalism scholars may find themselves a bit overwhelmed by the number of topics and cases presented; interested readers will find it worthwhile to persevere to the end.
One of the best features of the book is the postscript on the 2012 rulings on immigration and healthcare, two cases that highlight the continuing importance of federalism decision-making in the U.S. political system and on the Supreme Court. The publisher is to be commended for allowing the authors to include these late entries as examples of Roberts Court federalism. These two rulings on the constitutionality of the Affordable Care Act and the Arizona immigration law indicate that the debate over federalism is very much alive. They also demonstrate that the Supreme Court has opted for a somewhat less intrusive, albeit still crucial, role in determining the allocation of power between the federal government and the states and seems to be more willing to constrain state autonomy in selected policy areas.
Jenkins, John (2012). The Partisan: The Life of William Rehnquist. New York: Public Affairs.
O’Donnell, Michael. “Raw Judicial Power.” The Nation (October 22, 2012).
United States v. Lopez, 514 U.S. 549 (1995).
United States v. Morrison, 529 U.S. 598 (2000).
Copyright 2012 by the Author, Susan Gluck Mezey.