The great Justice Louis D. Brandeis, who famously described
states as the laboratories of our democracy, might well have
welcomed the solutions to many of the nation's most pressing
social and economic problems that have emerged from these
laboratories in recent years. He would probably be less impressed,
however, with the work of his modern counterparts on the Supreme
Court, whose rulings have stifled state experimentation even
while professing a commitment to protecting the dignity and
authority of the states in the name of constitutional federalism
Given the continuing possibility of bitter partisanship in
Congress, where an energized Republican majority faces an
unbowed Democratic minority, it is likely that states will
continue to be the boldest actors across a range of policy
initiatives. The Supreme Court's attitude toward their experimentation
is every bit as important in shaping the direction of the
country as its views on abortion and other hotly contested
In recent years, dramatic developments in domestic policy
have occurred at the state level. In health care, for example,
numerous states (including Texas under then-Gov. George W.
Bush) have enacted patients' bills of rights. Other states
have created purchasing pools to bargain down the skyrocketing
prices of prescription drugs. On Election Day, Californians
passed an initiative directing billions of dollars toward
stem-cell research; voters in Florida, Nevada and Wyoming
passed medical malpractice and liability measures in an effort
to safeguard the quality and control the costs of health care.
In the environmental arena, federal law is lagging behind
state initiatives. Mercury pollution is most aggressively
being eliminated in Massachusetts; the toughest controls on
acid rain are in New York; California recently embarked on
an effort to combat global warming, even as the Environmental
Protection Agency has decided that carbon dioxide, the principal
greenhouse gas, cannot be controlled at all under the federal
Clean Air Act. Finally, it took a bold state attorney general
named Eliot Spitzer and an obscure New York law called the
Martin Act, rather than the Securities and Exchange Commission,
to hold Wall Street firms accountable for the stock picks
they offered American investors.
States have been acting as Brandeis described: crafting innovative
solutions that can be replicated when successful and abandoned
when they fail. The conventional wisdom, fueled by the court's
opinions, makes the Rehnquist Court the protector of state
prerogatives. It has, in a series of close decisions over
the last 15 years, reworked significant areas of constitutional
law with the professed purpose of advancing what it calls
"Our Federalism." But the court is certainly not
pro-state in terms of honoring what Brandeis called its "grave
responsibility" to protect experimentation. More often
than not, the Supreme Court has nipped it in the bud. In fact,
the court's jurisprudence looks unfavorably on governmental
innovation at all levels.
The most controversial aspect of the court's federalism has
been its efforts to rein in the powers granted Congress under
the Constitution's Commerce Clause and 14th Amendment. These
efforts are necessary, the court argues, to prevent the federal
government from intruding into areas traditionally controlled
by the states. Quite frequently, however, states have supported
the need for a federal role. In 2000, for example, the court
struck down portions of the federal Violence Against Women
Act although 36 state attorneys general had argued that they
needed the federal law, leading Justice David Souter to quip
that it is "not the least irony of these cases that the
States will be forced to enjoy the new federalism whether
they want it or not."
The states have also been clamoring for the court to reconsider
its standard for judging when a federal law prevents state
and local governments from legislating on the same subject,
a practice known as "preemption." The states have
asked the court to find preemption only when Congress says
explicitly that it wants to eliminate state policymaking.
The court has largely turned a deaf ear to these requests.
Just last term, for example, an 8-1 court majority blocked
Southern California's effort to make the region's air cleaner
through stricter emissions standards. The state's program
was struck down despite ambiguity about whether Congress intended
to prohibit the state from setting policy on this issue.
The court is protecting federalism both too much and too little
-- too much, by striking down federal law where even the states
recognize that a federal role is necessary to address a national
problem; too little, by limiting state experimentation.
The court's rulings and Congress's ambiguity are not the only
federal government obstacles to state experimentation. The
Bush administration, while claiming to approve of the devolution
of authority to the states, supported invalidating the Texas
Patients' Bill of Rights, even though Bush backed the legislation
when he was governor. This coming term, the administration
has told the court that a Texas law that would hold herbicide
manufacturers accountable to farmers is also preempted by
a federal statute.
Unlike Congress or the executive branch, though, the court
is supposed to be the neutral arbiter of battles between the
federal government and the states. Several recent cases suggest
that it may yet embrace that role. In a 2003 case challenging
California's Holocaust Victim Insurance Relief Act, which
required insurance companies to provide information about
policies issued in Europe between 1920 and 1945, a dissenting
coalition of Justices John Paul Stevens, Ruth Bader Ginsburg,
Antonin Scalia and Clarence Thomas called for reforms to favor
state experimentation. Evidence of such support from across
the court's ideological spectrum signals that change may be
on the way.
In briefs filed by state attorneys general over the last decade,
the states have asked the Supreme Court to redefine its understanding
of federalism. Federalism as explained by the states is about
allocating power among the federal government and the states
so as to improve the way government serves its citizens. This
vision of federalism will not completely satisfy those who
want the court to reduce federal power, nor those who urge
the court to enforce every federal mandate. But the court's
jurisprudence should not be about satisfying a political constituency;
it should be about making our system work.
By listening more carefully to the states as it crafts its
federalism jurisprudence, the Supreme Court could transform
the most important legacy of the Rehnquist era from a source
of polarization to a doctrine that will win broad support.
If federalism is about protecting the states, the court should
begin by listening to them.
Douglas Kendall is executive director of Community Rights
Counsel, a public interest law firm that represents state
and local governments in constitutional cases. He is a co-author
of "Redefining Federalism," forthcoming from the
Environmental Law Institute.