At first blush, the five justices who decided to name George W. Bush the 43rd president appear to be hypocritical. How could these staunch “states rightists” now decry federalism in order to quash the Florida Supreme Court’s interpretation of Florida’s election statutes? While admitting that the court “generally defers to state courts on the interpretation of state law,” Chief Justice Rehnquist, in his concurrence (joined by Justices Scalia and Thomas) relied on two civil rights cases from 1958 and 1964, where the Warren Court struck down state Jim Crow laws.
Nothing disingenuous about that. In the last decade, the same majority of five conservative justices has deferred to states rights in many cases while strengthening the repressive mechanisms of the federal government in others. Conservatives traditionally favor states rights in order to maintain local autonomy over issues such gun control, tobacco rights (if you can call them rights), disability rights, and violence against women, saying that states are closer to the people. States, however, often repress their own citizens at the behest of local special interests.
The Supreme Court has used this “new federalism” to immunize state governments from lawsuits in both state and federal courts. In January, for example, the court immunized states from suits by their employees for violating the Age Discrimination in Employment Act, and in May, the Supreme Court voided the rights of victims of rape, domestic violence and other gender motivated crimes to sue their attackers in federal court. According to Katherine J. Rogers, Executive Director of the NOW Legal Defense in Education Fund, which represented the plaintiff, the decision took the federal government out of the business of defining civil rights and creating remedies. Chief Justice Rehnquist wrote for the majority that the general police power was something the founders denied the national government and reposed in the states.
Although the last decade has seen the Supreme Court steadily erode the ability of Congress to regulate civil rights, the court has not hesitated to strengthen the ability of the federal government to repress people in this country and abroad. Construing the Supremacy Clause, which grants Congress the power to preempt state law, the Supreme Court struck down a Massachusetts statute aimed at boycotting companies that do business in Myanmar (Burma). The U.S. State Department had documented numerous labor and human rights abuses in Myanmar including the killing and torture of dissidents and ethnic minorities as well as forced labor. In 1995, the court overturned a law that prohibited carrying a gun near a school, the first time since the New Deal it had struck down a law for exceeding the power of Congress to regulate interstate commerce. Federalism, a doctrine of convenience, has been used selectively by the court.
In her dissent in Bush v. Gore, Justice Ginsburg chastised the Chief for his “casual citation” of the two civil rights era cases, reminding us they were unique to the Jim Crow South. Perhaps Chief Justice Rehnquist, who favored maintaining Plessy v. Ferguson’s racist separate but equal doctrine, sought to preempt criticism of his motives in preempting a Gore victory in this election. And maybe Justices Scalia and Thomas refrained from penning separate opinions, letting the Chief do the dirty work, in order to forestall similar charges of partisan conflicts of interest. Once again, the end justified the means.