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Unreliable Ally

Advocates of small government shouldn’t look to the Supreme Court for help.

Jul 16, 2012, Vol. 17, No. 41 • By ROBERT F. NAGEL
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Republican appointees have been a majority on the Court for some four decades now, and Sebelius pretty much sums up the result. As in Sebelius, the Court’s federalism decisions contain some formulations that pay homage to our federal system and hold out some promise for constraining national power in the future. But the promises are usually limited or abandoned, as the Court approves most important exercises of national power, including laws enacted under the commerce power and the power to tax and spend. Prior to upholding the Affordable Care Act, for example, the Court approved the use of the Commerce Clause to regulate the cultivation of marijuana on private land for private medicinal use. This decision relied on and approved the reasoning in the most expansive New Deal-era Commerce Clause cases. Anyone who thinks that the Court will build on its efforts in Sebelius to define new limits to the commerce power should look at the whole record in the modern era.

Over and over again, abstract devotion to constitutional principle has been less consequential than the practicalities of the Court’s institutional position. And, as was true with Chief Justice Roberts’s role in Sebelius, the crucial votes are often cast by judicial conservatives who (in the abstract) believe in a robust federal system.

The most egregious illustration is the famous 1992 decision in Planned Parenthood v. Casey reaffirming the Court’s authority to enforce the right to abortion as a limitation on the power of state and local governments. The crucial votes came from three Republican appointees, including Justice Anthony Kennedy, now a hero in conservative circles for his vote to invalidate Obama-care. The opinion that Kennedy joined in Casey hardly attempted a serious argument for any constitutional basis for a right to abortion, emphasizing instead that reversing Roe v. Wade would threaten the Court’s position as the nation’s ultimate expositor of constitutional law. As others have pointed out, it may well be that in Sebelius Chief Justice Roberts had very similar concerns about preserving the Court’s authority as an organ of the national government.

In Casey Kennedy revealed far more than a frantic desire to preserve the Court’s authority. He articulated a deep distrust and fear of politics at the state and local level. Indeed, he depicted resistance to the Court’s rulings on abortion as anarchic efforts to undermine not just the Court’s position on abortion, but the rule of law itself. Was this a onetime overreaction unique to the abortion issue? Hardly. A few years after Casey, the Court invalidated a state law that term-limited that state’s congressional representatives. The majority opinion, with which Kennedy concurred, was so frightened by the power exercised at the state level that it conjured an image of the Congress becoming a “confederation of nations.” In his opinion, Kennedy added the supremely unlikely thought that term limits might mean that “the sole political identity of an American is with the State of his or her residence.” It seems that those dark and foreign forces out there in the states are, even for devotees of federalism like Kennedy, a threat to the very idea of nationhood.

Despite all the evidence, spanning the last 40 years, that putting principled conservatives on the Court can be expected to provide only weak and intermittent protection against excessive national power, the lure of the litigation drama is sure to continue to attract much attention and energy. But the better answer, as members of the Tea Party have intuitively understood, is proud and vigorous political organization at the state and local levels. The Sebelius decision makes that the only remedy for the overreach represented by Obamacare. But it would be a serious loss not to learn the larger lesson that politics arising from local communities across the country is also, in general, more realistic than litigation for reining in the central government.

Robert F. Nagel teaches law at the University of Colorado. Among his books is The Implosion of American Federalism (Oxford, 2001). 

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