The Real Division in the Court
Neither the conservative nor the liberal justices were hypocritical. They just have fundamentally different views of federalism

by MICHAEL S. GREVE

The Weekly Standard, December 25, 2000, page 28

"So much for states' rights," Washington Post columnist E. J. Dionne sneered in commenting on the Supreme Court's ruling in Bush v. Gore. His comment encapsulated several weeks' worth of noisy complaints about Republican politicians. As the Gore camp portrayed it, the GOP was cynically selling out its own commitment to federalism when it talked trash about the Florida Supreme Court, ran to federal court at the drop of a chad, and nationalized the appointment of presidential electors -- a matter the Constitution explicitly reserves to the states.

Conservative Supreme Court justices, as well, were said to be hypocrites. "It is ironic indeed," the New York Times harrumphed on the occasion of the U.S. Supreme Court's stay of the Florida vote count, "to see the very justices who have repeatedly ruled in favor of states' rights -- Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor -- do an about-face in this case."

Conservatives could easily play this same game: Why did the New York Times not find it "ironic" that Laurence Tribe, Gore's Supreme Court counsel, increasingly sounds like a states' rights apostle, circa 1960? But that would be to miss a larger point. Both liberals and conservatives actually have coherent conceptions of federalism, and the justices pursue those conceptions with remarkable (though not unfailing) consistency. The conservative version reflects the constitutional structure and logic. The liberal version erodes that structure and perverts its logic.

Bush v. Gore confirms the pattern. It would be silly to deny that partisan considerations influenced the parties' arguments before the Court, the debate over the case, and the justices' rulings. It is true, moreover, that seven justices, the five conservatives among them, embraced an equal protection argument that ought to worry constitutional federalists. But the case presents no ironic inversion of federalist positions. The parties fought, and the justices ruled, on their accustomed sides.
 
Two Federalisms

Every federalist system faces the challenge of ensuring national cohesion without centralizing the entire system of government. The Founders' solution was to limit the functions and powers of the national government, while ensuring its unqualified legal supremacy. Within its constitutional sphere of authority, the national government must be able to accomplish its purposes by acting directly upon the citizens, without the help or intermediation of the states (to say nothing of obstruction by them). National laws must have precedence over those of the states. The themes of functional separation and legal supremacy are central to constitutional federalism. They run through the records of the Constitutional Convention, the Federalist Papers, and the opinions of the Marshall Court.

This constitutional federalism is the federalism Clarence Thomas, Antonin Scalia, William Rehnquist, and (with significant reservations and qualifications) Sandra Day O'Connor and Anthony Kennedy have attempted to recapture. While their endeavor is constrained by political realities and decades of adverse precedents, the case law is beginning to reveal the basic contours of their federalist project.

In a series of decisions, beginning with the invalidation of the federal Gun-Free School Zones Act in U.S. v. Lopez (1995), the five federalist justices have reestablished constitutional limitations on the national government's power. At the same time, a long line of cases, beginning with Seminole Tribe v. Florida (1996), has reasserted the sovereign immunity of state governments against private lawsuits brought under federal statutes. In Printz v. United States (1997), the five federalists invalidated Congress's attempt to compel state and local enforcement of federal gun control requirements. Justice Scalia's far-reaching opinion in that case was explicitly based on the Founders' intention: If Congress wishes to coerce citizens, it must do so directly, not by "commandeering" the states. In all these cases, the four liberal justices (Breyer, Ginsburg, Souter, and Stevens) dissented.

In Bush v. Gore, the four liberals invoke federalism and states' rights principally against the concurring opinion signed by Chief Justice Rehnquist and Justices Scalia and Thomas. The concurrence finds the Florida Supreme Court's ruling in violation of Article II of the Constitution, which provides that state legislatures shall determine the manner of appointing presidential electors. The liberals' invocation of federalism is misplaced, though: If the supremacy of federal law means anything, it means that state courts may not do end-runs around the federal Constitution.

Still, one cannot dismiss the dissenters' objections as disingenuous or tactical. All four liberal justices have invoked states' rights with some passion and regularity. Justice Stevens in particular has been a vociferous defender of states' rights -- for example, in cases concerning the federal preemption of state law (where the principle of federal legal supremacy tends to push the five conservative federalists towards a "nationalist" position).

The liberal justices, then, aren't mindless nationalists. Rather, they adhere to a "cooperative" or "administrative" view of federalism. Under that conception, the national government is unlimited, or at least has no constitutional limitations that a court could recognize. It accomplishes its purposes not through legal supremacy but through institutional cooperation with the states. The states' role lies not in governing a separate sphere of authority but in their independent authority to administer federal schemes.

Such a federalism is not intrinsically incoherent. It is the federalism of Germany, Switzerland, and Europe, as Justice Breyer observed in his Printz dissent. Under this view, there is nothing objectionable in the federal commandeering of state officers.

"The fact is that our federalism is not Europe's," Justice Scalia replied to Justice Breyer, and as a matter of constitutional logic and structure, Scalia is right. Cooperative federalism does, however, have a political and judicial tradition in America. Its first judicial endorsement flowed from the pen of Justice Roger Taney, in an opinion celebrating the state enforcement of (of all statutes) the federal Fugitive Slave Act. Politically, cooperative federalism can be traced to the Progressives, who hoped to harmonize national aspirations with the virtues of localism. Cooperative federalism became dominant, both as a matter of political practice and judicial doctrine, under the New Deal.

As the political pedigree suggests, the shift from constitutional to cooperative federalism is tied to the growth of government. Constitutional federalism constrains government. It limits the national government's powers, and it exposes the states, which may wish to regulate in the vast realm beyond the national government's power, to competitive discipline: Excessive regulation may induce productive citizens (or businesses) to move to other, more hospitable states. Cooperative federalism, in contrast, unleashes the national government and enables state governments, through "cooperation" with each other and with the Congress, to establish national policy cartels that preclude citizens from voting with their feet.

Some legal scholars have argued that the justices' seemingly wavering pro- or anti-federalism opinions simply mask their pro- or anti-government preferences. Among the conservative justices, however, only Clarence Thomas can reasonably be suspected of harboring libertarian sympathies, while cooperativist Justice Breyer has inveighed in books and articles (though not in his opinions) against the excesses of federal regulation. The real, much deeper divide runs between constitutional constraint and democratic aspirations, a divide that ran through the Bush v. Gore opinions.

Constitutionalism is not per se anti-democratic. It insists that "We the People" ordain and establish the Constitution. The constitutional point, though, is to break, fragment, and temper democratic impulses through a system that institutionalizes intra-governmental rivalry, jealousy, and competition. Federalism, for a prominent example.

Democrats chafe under formalistic constraints, and they like cooperative federalism because it trumps those constraints. When government institutions become partners rather than competitors, they cease to frustrate the demos and instead provide it with multiple access points. The system, to be sure, remains too messy and fragmented to satisfy Rousseauean aspirations. Cooperative federalism, however, may be the closest possible American approximation of the European centralizing ideal.

In the course of the post-election campaign, we have been treated to relentless appeals to "the will of the people" -- not as expressed through the ordinary, constitutional channels, but in the raw form of the national popular vote. The purveyors of this demagogy opened fire on institutions that embody constitutional federalism -- prominently, the Electoral College -- and hit bottom in the persistent demands, and the judicial attempts, to identify the voters who "intended" to vote for Gore, as distinct from those who actually did so by complying with the formality of punching a ballot.

When the Supreme Court's majority effectively halted the Florida Supreme Court's endeavor to "recover," as the Florida justices put it, the voters' true intent, Justice Ginsburg denounced the ruling as a lamentable breach with -- cooperative federalism.
 
Of Judges and Judging

Justice Ginsburg's operative phrase, in fairness, is "cooperative judicial federalism," invoked twice in her dissent. Federal and state judges, no less than elected officials, are partners in a common enterprise, and that consideration bars federal interference with state adjudication in all but the most extreme circumstances. Writing in the same vein, Justice Stevens took the majority to task for endorsing the Bush plaintiffs' "lack of confidence in the impartiality and capacity" of the Florida judges.

Putting aside the immediate causes of that distrust, it bears emphasis that the Founders viewed state judges very much from James Baker's perspective -- as partisan, parochial hacks. State courts would routinely favor their own citizens over those of other states, which is why such "diversity" cases fall in the jurisdiction of federal courts. State courts may, in the ordinary course of deciding cases, adjudicate federal causes of action. The point of that arrangement, though, is not to empower the states but to extend the supremacy of federal law. State court applications of federal law are subject to Supreme Court appeal, and Congress is empowered to establish lower federal courts to handle federal cases if state courts should prove partisan and unreliable.

The Founders considered that event quite likely. "The fitness and competency of [state] courts should be allowed in the utmost latitude," Hamilton writes in Federalist 81. But the conciliatory gesture is followed by an apprehension that "the prevalency of local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes." Moreover, "state judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws."

As if to earn this distrust, the state courts of the young nation soon began to obstruct federal laws under the guise of interpreting their own state laws. The Marshall Court overruled them. That early case is cited as a precedent by the Bush v. Gore majority, along with two civil rights era cases that overruled segregationist state court decisions under state law. Justice Ginsburg's dissent acknowledges the precedents, but proceeds to protest that Bush v. Gore "involves nothing like the kind of recalcitrance by a state high court that warrants extraordinary action by this Court." The Florida Supreme Court, Ginsburg writes, "surely should not be bracketed with state high courts of the Jim Crow South."

Perhaps repeated judicial attempts to stack the deck in a presidential election do not compare to the moral scandal of Jim Crow. But still the Florida Supreme Court made up its own election statute, in derogation of federal law; refused to respond to the U.S. Supreme Court's exhortation to observe the federal strictures; and then repeated the exercise. Just how much recalcitrance is too much?

How much collateral damage, moreover, does it take until the obstruction of federal laws and purposes, under the guise of state law interpretation, becomes a federal issue? Why, yes, Justice Breyer concedes, "the selection of a President is of fundamental national importance. But that importance is political, not legal." As a matter of law, the Florida Supreme Court is entitled to drive the country over a political cliff, and never mind Article II and statutory safe harbors.

It is entirely fitting that this position should have been urged upon the Court by David Boies, a trial lawyer -- one of a cast of characters who round up thousands of plaintiffs across the country, sue corporations for several billion dollars in some forsaken Alabama county that neither the plaintiffs nor defendants have ever entered, and then protest federal tort-reform measures on the grounds that product liability lawsuits are strictly a matter between Alabama's citizens and judges. (The national importance is economic, not legal, as Justice Breyer might say.) Ruthless transgressions by parochial state judges and juries, however, were not the Founders' idea of federalism. They were the Founders' nightmare.
 
The Sovereign

Having extolled cooperative federalism, Justice Ginsburg ends her disquisition on Article II by invoking the real, constitutional federalism. The concurring justices' "solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign," meaning the citizens and the State of Florida as a political entity. "Were the [conservative] members of this Court as mindful as they generally are of our system of dual federalism," Justice Ginsburg chastises, "they would affirm the judgment of the Florida Supreme Court."

The serious, almost persuasive version of this argument is that the remedy for the Florida court's transgressions lay with the Florida legislature, rather than the U.S. Supreme Court. But that is not Justice Ginsburg's argument. The only hint at the Florida legislature's powers appears in the majority's per curiam opinion, not in Ginsburg's or in any other dissent. With that omission, Ginsburg's solicitude for state sovereignty collapses into an alarming embrace of judicial supremacy.

In its two decisions, the Florida Supreme Court trashed an entire structure of government. It emasculated canvassing boards by subjecting their determinations to de novo judicial review (excepting the boards that had manufactured additional Gore votes, which the court ordered to be certified without any review). The court twice overruled perfectly sensible determinations by the secretary of state (one made pursuant to established state law; the other, pursuant to the Florida Supreme Court's own deadline). The court twice supplanted the legislature's election laws with its own rules and deadlines.

A comparable legal action by the Florida legislature, the U.S. Supreme Court learned from Boies during oral argument, would have constituted an impermissible postelection change of the laws; coming as it did from the Florida Supreme Court, it constituted mere "interpretation." When the Florida legislature threatened to exercise its rightful authority to appoint a slate of electors, democratic (and Democratic) partisans hysterically denounced the attempt as -- well, an undemocratic interference with the judiciary's recovery of the voters' true intentions. Nothing and no one, no rule and no structure, must stand between the will of the people and its vicarious interpretation by the judicial committee for public safety.

That is the sovereign to whom, in the dissenting Supreme Court justices' world, we owe solicitude and unquestioning obedience. "It is confidence in the men and women who administer the judicial system," Justice Stevens writes, "that is the true backbone of the rule of law."

The rule of law is in trouble, and Bush v. Gore provides little comfort. The justices' unanimous remand of the Florida Supreme Court's first ruling expressed concern over the state court's reckless disregard for Article II and the federal safe harbor provisions. In the end, though, only three justices were prepared to follow the constitutional argument, while seven members of the Court resorted to an unprecedented, free-floating equal protection argument that invites federal regimentation for almost any reason.

One may hope that the equal protection part of Bush v. Gore will prove a ticket for this day and train only. The deeper and true problem is the assault on constitutionalism. That assault reflects long-rampant misconceptions, and it comes itself in the constitutionalist garb of federalism, judicial restraint, and the rule of law. For that reason, it cannot be countered with facile slogans about "judicial activism," "states' rights," and the like. We will have to remind ourselves of some long-forgotten truths about what it means to live in a constitutional, federal republic. If the crisis just passed helps us to do so, it will have done some good.

Michael S. Greve is the John G. Searle Scholar at the American Enterprise Institute and director of AEI's Federalism Project. He is the author of Real Federalism: Why It Matters, How It Could Happen (AEI, 1999).