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IN HER DISSENTING opinion in Bush v. Gore, Justice Ruth Bader Ginsburg wrote, “Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.”1 What is this system of “dual sovereignty” that supposedly fills the minds of the conservative justices? A crude assumption would be that they normally take every opportunity to defer to the states. Because Bush v. Gore presented an opportunity to defer to the states, making that assumption would seem to lead inexorably to the conclusion that the Court engaged in a raw political decision to make George W. Bush president. That line of reasoning has two key problems. First, the Rehnquist Court does not always defer to the states. Second, speaking of deferring to “the states” makes little sense where multiple state institutions are involved. Because leaving a state court alone may simultaneously impinge on the state legislature’s autonomy, following Justice Ginsburg’s criticism to that inexorable conclusion, one would need to believe not only that the Rehnquist Court had previously always deferred to the states, but also that it had always deferred to the state courts. For the most part, the Court’s conservative majority has, over the years, followed a pragmatic approach to federalism, designing doctrine to enable the states to carry out their functions in their separate ways, but without losing sight of national interests. Generally, empowering states to function autonomously is seen as serving the interest of a large nation, where problems and preferences vary from place to place, thereby making decentralized policy superior to national uniformity at least some of the time. 133 SIX Bush v. Gore’s Place in the Rehnquist Court’s Federalism Oeuvre Ann Althouse Thus, in United States v. Lopez,2 the conservative majority used a narrow interpretation of Congress’s commerce power to preserve an area of autonomy for state and local government to experiment with varying solutions to localized street violence. The general problem of gun violence in schools had gained national visibility and motivated Congress to pass a federal law, but no interconnection was made between the individual instances of guns in schools, and no spillover effect was seen that made national coordination of remedies important. Indeed, the localized approach was superior to uniform national law because solutions could be tailored to the problems and preferences of local communities.3 A national law imposing harsh prison sentences on offenders might do nothing more than repeat the approach that some places would choose, but it would interfere with efforts in places that had chosen solutions involving parental responsibility or gun exchange programs. One could say that reining in Congress served national interests because it supported a better approach to solving the problem and freed federal resources for dealing with genuinely interstate matters. Notably, the conservative justices have shown no sign of hobbling Congress in its efforts to deal with the sorts of matters that lend themselves to uniform national solutions.4 In fact, they have fended off state activities that intrude on the operation of uniform, national solutions. They remain committed to national power with respect to interstate matters because they not only recognize Congress’s power to regulate, but also broadly construe federal statutes to preempt state efforts at diverse, decentralized regulation where national interests are at stake.5 The phrase dual sovereignty wielded by Justice Ginsburg in Bush v. Gore does not properly connote the flexible, pragmatic approach to federalism the Rehnquist Court has taken. Sovereignty suggests that the states have a right to be left alone without regard to what they do with their autonomy. If one were to adopt this “blind deference to States’ Rights”6 one might follow this approach to the bitter end, permitting states to violate individual rights, disregard the requirements of federal environmental law, determine the outcome of a presidential election, and so forth. But if one embraces an eyesopen federalism, as I maintain the Rehnquist Court has done, that extreme deference is not demanded. The Court’s commitment to national interests has remained steadfast, even though the commitment to national uniformity has waned since the Warren Court era (1953–1969). Court watchers who bemoan the loss of a strong Supreme Court voice supporting a broad meaning for federal constitutional rights and congressional powers and the vigorously imposition of federal law on the states are quick to accuse the Rehnquist Court of immunizing the states from the...


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