Roberts, the Supreme Court and Contemporary States' Rights

I recently heard someone say (in a rather snide tone) that if John Roberts should take Chief Justice Rehnquist's place on the Supreme Court, it would be a case of the clerk taking the boss's job. My reaction to that was "so what?" Who better to fill the master's shoes but the apprentice trained at his shop?

One of Chief Justice Rehnquist's legacies is his belief that the Constitution limits Federal power. Throughout his tenure on the Court, he did everything he could to emphasize and reinforce those limitations. Chief Justice Rehnquist understood that respect for federalism does not mean that there is no legitimate role for federal authority in protecting fundamental individual rights and advancing national interests. It simply means that the Constitution must not be interpreted to give the federal government unlimited power.

He came to a court that had traditionally, from the 1930s until 1995, held that the constitutional provision granting Congress the power to "regulate Commerce . . . among the several States" gave the federal government unlimited power to regulate anything that might conceivably have an impact on commerce. Many Constitutional experts claimed that this was not only blatant defiance of the Constitution but downright illogical.

Writing for the Court in the 1995 case, United States v. Lopez, Rehnquist amended this judicial error. He reasserted the principle that the Constitution gives Congress only a limited list of "enumerated powers," at the same time giving the states authority in areas where the federal government cannot intrude.

As it progressed, the Rehnquist Court limited Congress' ability to use state governments to advance federal policies and actually limited Congress' power to enable individuals to sue state officials.

Constitutional limits on federal power benefit conservatives and liberals equally, although liberals have traditionally assumed that federalism decisions furthered conservative politics. However, many liberal policies--gay "marriage," for example--have much better political prospects in "blue states" than in Washington.

If we can assume that the apprentice was well trained and tempered by the master, one might also assume that John Roberts would continue to promote that same limitation on Federal power.

Limiting federal power promotes competition between the states and we all benefit from competition. States with unpopular policies lose residents and businesses.

In a nation with strong federal power, there is little room for dissent. You agree with the federal government or you go to another country. When states can go their separate ways on key issues, a wider range of citizen opinions and preferences can be satisfied. If you don't like the policies of your state you can move to another where the laws are more sympathetic with your views.

The present Supreme Court, however, has managed to undermine Justice Rehnquist's legacy with their recent Gonzales v. Raich decision wherein they held that federal law supersedes a California law legalizing medical marijuana. In that decision they gave the Commerce Clause a broad interpretation. Justice Rehnquist and recently retired Justice Sandra Day O'Connor each wrote dissenting opinions on the verdict.

Therefore, perhaps the most telling and crucial question that should be asked of Judge Roberts is something like, "How, Sir, do you interpret the role of the federal government as it relates to the contemporary interpretation of states' rights?"