The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

State Merit Amicus Participation and Federalism Outcomes in the U.S. Supreme Court

Research suggests that merit amicus curiae participation correlateswith Supreme Court decision making and that states make frequentand effective use of this tool. To date, however, no study hasadequately examined the relationship between state amicus participationand the federalism values reflected in the Court's decisions.This article dev"Lelops and finds evidence for the assertionthat, when they cooperate in the amicus process, state participationis associated with an increase in the likelihood of rulingsfavoring state rather than national government power.     

The Consistency of the U.S. Supreme Court's "Pro-State" Bloc

This article examines the bloc of U.S. Supreme Court justicesthat produced the "pro-state" decisions in United States v.Lopez, Seminole Tribe of Florida v. Florida, and Printz v. UnitedStates. We are concerned primarily with the bloc's coherenceand consistency across other cases of interest to state governmentsover the 1994–1996 terms. The labeling of individual justicesand the Court in general as "pro-state" depends in part on thecases subjected to analysis; the greater the inclusiveness ofthe list of "cases of interest to the states, " the more thebloc seems to fray and the less coherent the Court's direction.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

The Semiconstrained Court: Public Opinion,the Separation of Powers,and the U.S. Supreme Court's Fear of Nonimplementation

Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.     

The Institutionalization of the U.S. Supreme Court

In pursuing their goals, members of the U.S. Supreme Court areaffected by their institutional setting. How has that institutionalenvironment changed over time and what have been the politicalconsequences of those changes? Despite considerable analysisof the institutional dynamics of legislatures and executives,political scientists have been slow to bring time series techniquesto the study of the Supreme Court, and as a result much lessis known about its evolutionary path. Measuring a variety oforganizational characteristics, I construct an index of theinstitutionalization of the Supreme Court from 1790 to 1996.This indicator suggests that the integration of the Court intothe system of federal policy making has better enabled the justicesto satisfy their objectives. To demonstrate this empirically,I test a series of error correction models of judicial influence,each of which confirms that the nature of the Supreme Court'scharacter has had considerable implications for the scope ofthe justices' legal and political impact. These results underscorethe need for judicial scholars to examine the Court's policymaking in longitudinal perspective.     

"An Innate Sense of Fairness": State Responses to the U.S. Supreme Court's Sovereign Immunity Decisions

The U.S. Supreme Court's recent revival of state sovereign immunityis usually cited as a significant development in modern U.S.federalism. These decisions giving states a powerful defenseagainst lawsuits lead to the question: How will the states reactto the Court's rulings? How likely is it that states will consentto be sued? This article discusses the consequences of the Court'ssovereign immunity rulings specifically concerning state legislativedebates over immunity waiver bills. It explains why some stateshave been willing to waive immunity, despite the Court majority'sfears of a flood of lawsuits if states did not enjoy immunity.     

Chief Justice Roberts's Health Care Decision Disrobed: The Microfoundations of the Supreme Court's Legitimacy

The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as‐if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual‐level change.     

How Public Opinion Constrains the U.S. Supreme Court

Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices' attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court's activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases.     

Strengthening the Political Safeguards of Federalism: The Fate of Recent Federalism Legislation in the U.S. Congress

Although a number of measures have been proposed during thepast decade to require the U. S. Congress to take more accountof state and local interests, whether in regard to mandates,preemptions, regulations, or grants-in-aid, the only major successhas been passage of the Unfunded Mandates Reform Act of 1995(UMRA). This article examines the fate of the dozen bills thatprogressed far enough to be the subject of a committee hearingor receive a vote in the House or Senate. Only a few of thesemeasures, most of them rather modest in scope, were enacted,while the most significant measures were rejected, largely becausestate and local governments have experienced a number of difficultiesin reproducing the conditions that were present for the passageof UMRA. Health, labor, and environmental groups were able toblock a number of these bills. Business groups occasionallyparted company with state and local governments and worked todefeat federalism legislation. Finally, state and local governmentgroups have not always been united in support of these measures.     

The State of U.S. Federalism, 1999-2000

Federalism has rarely been a key national campaign issue, andthe presidential campaign of 2000 was no exception. Althoughthe candidates talked of a key state-local issue—education—itwas in the context of the popular concern over the quality ofschools, rather than federalism issues of governmental responsibilityfor education. However, one aspect of federalism was evidentin the presidential campaign. The first president of the newmillennium may get a chance to name at least one U.S. SupremeCourt justice. Given the slim 5–4 majorities on most federalismcases, the appointment or appointments could be pivotal. Meanwhile,in the Congress and state Capitols, technology and globalizationissues forced a rethinking of traditional intergovernmentalfiscal and regulatory functions.     

The State of U.S. Federalism: 1998-1999

In 1998–1999, changing federalism in the United Statesmeant that states have greater discretion in some areas of socialpolicy while Congress has asserted greater influence over issuesof culture and crime. Despite the rhetoric about decisions beingbest made by states and localities, Congress continues to takeon new areas, such as health privacy. In the meantime, the U.S.Supreme Court's sustained focus on issues of federalism intensified,with states' rights continuing to receive emphasis, even thoughthe Court upheld federal power in selected cases and refusedto sanction state actions in others.     

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of theRehnquist Court's post-1990 federalism decisions, but thereis less agreement about the consequences of these decisions.A previous study examined the direct consequences of these decisions,by inquiring into the extent to which Congress was able to reviseand reenact statutes that were struck down by the Court, butit left unexamined the effects on Congress's ability to legislatein other areas. This article assesses the indirect consequencesof these decisions by tracing their effects on the draftingof and debate over bills other than the ones directly invalidatedby the Court. It turns out that these decisions have had onlya limited effect on Congress's ability to draft constitutionallyacceptable legislation, but they have had an important effecton the debate over the passage of several pieces of legislation,whether by handing opponents arguments to oppose the bills orby providing members of Congress with means to explain volesthat would otherwise be difficult to defend.     

Federalism and U.S. Water Policy: Lessons for the Twenty-First Century

This article traces five historical streams of water policyin the United States, revealing the strain and stresses of intergovernmentalrelations pertaining to water resource management. It findsthat water policy is increasingly characterized by pragmaticfederalism emphasizing collaborative partnerships, adaptablemanagement strategies, and problem and process orientation.The evolving nature of federal-state relations, characterizedby expanding federal authorities and increased state capacity,coupled with a rise of local watershed groups and greater ecologicalconcern, calls for improved coordination. Yet challenges resultingfrom policy fragmentation and ecosystem complexity remain. Continuedcalls for greater integration will likely be heard as federal-staterelations continue to evolve.     

Dimensions of Federalism In U.S. Senate Voting, 1981-1982

The concept of federalism is important in political science;yet it has proven difficult to clarify and to use in empiricalanalyses of American political institutions. This analysis demonstratesthat the congressional federalism scores reported in Publiusare not unidimensional and that a better measure of federalismcan result in improved explanatory power of empirical analysisof the determinants of congressional attitudes toward federalism.A procedure for constructing a better measure of federalismis suggested.     

Change over Tenure: Voting, Variance, and Decision Making on the U.S. Courts of Appeals

Existing scholarship on the voting behavior of U.S. Courts of Appeals judges finds that their decisions are best understood as a function of law, policy preferences, and factors relating to the institutional context of the circuit court. What previous studies have failed to consider, however, is that the ability to predict circuit judge decisions can vary in substantively important ways and that judges, in different stages of their careers, may behave distinctively. This article develops a theoretical framework which conceptualizes career stage to account for variability in voting by circuit judges and tests hypotheses by modeling the error variance in a vote choice model. The findings indicate that judges are more predictable in their voting during their early and late career stages. Case characteristics and institutional features of the circuit also affect voting consistency.     

Social backgrounds,social motives and participation on the U.S. Supreme Court

This study explores the utility of psychological content analysis in studying judicial behavior. Justices' testimony before the Senate Judiciary Committee was scored for power, achievement, and affiliation imagery using content analysis techniques developed by Winter (1982a). The results suggest that motivational content analysis may provide a more direct means of assessing the relationship between judges' psychological disposition and their decision making behavior. Combinations of motive imagery variables and social background variables explained between 64% and 83% of the variation in writing opinions and in casting concurring and dissenting votes among U.S. Supreme Court justices.     

The outcome-prediction strategy in cases denied certiorari by the U.S. Supreme Court

We investigate whether the substantial use of the outcome-prediction strategy by Supreme Court justices occurs in the petitions denied certiorari by the Court. We show with a computer simulation that [Caldeira, G.A., Wright, J.R., & Zorn, C.J.W. (1999). Journal of Law, Economics and Organization, 15, 549–572], who modeled the missing final votes for denied petitions in order to include them in their study of the use of the outcome-prediction strategy, may have obtained spurious results. Application of the logic of conditional probabilities to the denied petitions suggests that all but those denied by the narrowest of margins are probably considered unacceptable by the justices on non-outcome-oriented grounds, and, therefore, are not subject to use of this strategy. We evaluate the pursuit of the outcome-prediction strategy in petitions that narrowly fail to be granted cert by focusing upon the petitions that are narrowly granted cert and find limited use of the strategy. We conclude that the outcome-prediction strategy probably is little used by the justices in confronting the petitions denied cert and that investigations of the use of this strategy are best confined to those petitions granted cert.     

The State of U.S. Federalism, 2000-2001: Continuity in Crisis

Despite the 2000 presidential-election crisis, basic continuityprevailed in American federalism, including survival of theelectoral college and furtherance of the more recent shift offederal policymaking from places to persons during today's eraof coercive or regulatory federalism. The year revealed theenduring salience of political parties and the prominent roleof interest groups in the politics of federalism, as well asthe ways in which the federal system shapes, and is shaped by,policy debates. The U.S. Supreme Court continued its state-friendlydecision-making while Congress continued to preempt state authority,attach new conditions to federal aid, federalize criminal law,and nationalize power even while giving state and local governmentsmore administrative discretion. The year also illustrated thedeclining impact of federal aid on state-local revenues comparedto the increasing fiscal impact of the federal government'ssubstantive, monetary, and fiscal policies.