39 Pages Posted: 28 Jan 2010
Date Written: June 1, 2002
What are we to make of a Court that shows so little regard for the rules of the game? How can we make sense of a series of decisions that seem so blatantly incoherent? This is, after all, a Court that calls Congress names in the process of invalidating perceived congressional insults to the dignity of the states and then turns around and insults the states and their judicial systems. As we have seen, the current Court bounces back and forth, for example, between reliance on ordinary language and insistence that language must be defined in terms of legal art, and between interpreting a Commerce Clause whose meaning has changed through judicial interpretation over time and a static Commerce Clause that always must be read to reflect "the very principle of separate state sovereignty."
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