Federalist-84 is the blog handle of a perceptive and helpful young lawyer in LA who's put up a very nice site ( here ) featuring his interest in the current topic of the power struggle between the states and the federal government, federalism, in a word. You can find the citations to the new leading cases, such as Maxwell and McCoy, and others, there.
The odd thing about this power struggle is that if there were a real tug of war occurring between the states and the federal government one might expect to read all sorts of news items from the front, such as the states promoting bills in Congress to get Congress off their backs. But you don't see that, or at least I haven't and I've been cognizant of the issue for some time now.
What I do see is the Supreme Court tugging on the other side of the rope from Congress. The Supreme Court is leading this struggle on behalf of the states, but the states don't seem to have asked them to do this. The effort appears the least bit gratuitous, as though the Court is telling the states "We know what's best for you."
The states are happy for such assistance as they can get, I suppose, and continue to defend on grounds of sovereign immunity when able, assured that this seemingly moribund 11th Amendment doctrine remains alive and well before the Rehnquist wing of the Court.
In the VAWA case (U.S. v. Morrison, 2000), Congress spent four years, conducted numerous hearings, and let the states know it wanted to pass a law to protect women against violence. Congress was making this a national problem. Traditionally only the states passed laws prohibiting harming women, such as through their criminal and family law. Was this okay with the states? Thirty-eight state attorneys-general made submissions stating 'be-my-guest, this problem is beyond our ability to deal with it, see whether you can.' The states weren't squawking that they were being deprived of their power or dignity.
The Supreme Court declared the Congressional Violence Against Women Act (VAWA) unconstitutional as depriving states of their reserved power under the 10th Amendment, to their probable surprise. The Supreme Court was protecting the states against federal usurpation that the states apparently didn't mind. I don't imagine they said thank you. Rehnquist and Co., said never mind, this medicine is good for you. I dunno, maybe it is. Power for the states, no justice for the women.
When it comes to power vs. justice, if power wins, justice takes a back seat to legitimacy. Legitimacy comes before justice. All you need is standing to get in the door. And a justiciable issue. So, in analyzing prospects for winning in the Supreme Court on any issue, one might profitably begin by asking whether these items exist::
1. Is the issue justiciable?
2. Does the plaintiff have standing to assert the issue?
3. Did the government branch whose act is to be challenged have the power to do that act, such as enact legislation or issue a rule or order? Because if it didn't, it's illegitimate and unconstitutional.
4. On the equities of the case, will the Court be siding with justice for the plaintiffs and those like him or her across the country if it rules in their favor on the merits?
If the Court short circuits the lawsuit on grounds of 1, 2, or 3, it doesn't reach the merits. It's decided on legitimacy grounds, not on the merits. Plaintiffs want a decision in their favor on the merits. Items 1,2,&3 are the routes to plaintiff's disappointment.
The defense can win on any one of the above four grounds, while the plaintiff must win on all four to win at all. Tough, getting into the Supreme Court and winning. Lots of obstacles.
Let's see, if millions of cases are occurring in courts all across the country, and 8,000 parties petition to have their matter reviewed in the Supreme Court annually, and the Court only accepts 80 case for full-blown decision per year, those are poor odds for threatening to take your case all the way to the Supreme Court. Yet there are those who do. Michael Newdow was one of the intrepid ones. Still at it, I've read, too. Good luck, but don't count your chickens.
What the Supreme Court is looking for before it will grasp large social issues by the horns and try to wrestle them to the ground, is "consensus." If there's a consensus of the people who count in this country that it's time for a certain practice or policy to bite the dust, then the Court is able to wrestle that animal to the ground, since it's already dying. That was apparently the case when the Warren Court struck down Jim Crow in public school education in 1954 in Brown.
Once the principle was established there, it didn't take a great deal of imagination to extend the principle to other areas. What it took was incredible tenacity in the face of great and determined opposition. But the dragon was bleeding and could no longer stand. The Court had seized the bare minimum consensus that then existed and taught that the dragon must be slain. Gradually people began to see that it wasn't worth trying to prop up a dying dragon. Moreover, the more thoughtful ones realized it was wrong even to try.
There's a death penalty case before the Court this term where the question is whether it is constitutional to execute youthful killers. The last time the issue reached the Court Justice O'Conner said it was, that there was no consensus in the nation to the contrary, but that someday that might change. Years have now gone by and this term we'll find out whether the Court sees a consensus in the fact that many states have in the meantime outlawed the death penalty for minors. Maybe someday has arrived. Expect at least three dissents either way.
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