Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court

47 Pages Posted: 17 Jan 2016 Last revised: 2 Feb 2016

See all articles by David S. Louk

David S. Louk

Columbia Law School; University of California, Berkeley, School of Law, Students ; Yale Law School

Date Written: April 20, 2015


The text of a Supreme Court opinion rarely tells the full story of the debates, discussions, and disagreements that resulted in a particular decision. Drawing on previously unexamined archival papers of the Justices of the Burger Court, this Note tells the story of the Burger Court’s federalism jurisprudence between 1975 and 1985, famously bookended by a pair of rare and abrupt reversals of Supreme Court precedent. The Note documents the Justices’ deliberations for the first time, sheds new light on the institutional workings of the Court, and enriches our understanding of the foundations of modern federalism. In its federalism cases, the Burger Court grappled with the challenge of balancing the states’ autonomy against the rise of new national problems and an expanding federal government’s solutions to them. The Justices’ papers show that they were more attuned to policy outcomes and the real-world consequences of their decisions than may typically be assumed. Above all, the papers reveal the Burger Court’s deep struggle to articulate a sustainable federalism jurisprudence given the constraints of judicial craft. As the Note concludes, however, the Burger Court’s uneven federalism experiments nonetheless laid the groundwork for the Court’s subsequent attempts to fashion more workable doctrines. The Rehnquist and Roberts Courts have adjudicated federalism disputes more effectively by avoiding impracticable doctrines and remaining mindful of the institutional limitations of courts as federalism referees.

Keywords: federalism, supreme court, law, tenth amendment, commerce clause, state sovereignty

JEL Classification: K10, K20, K23, K31, K32

Suggested Citation

Louk, David, Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court (April 20, 2015). Yale Law Journal, Vol. 125, p. 682, 2016, Available at SSRN:

David Louk (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States

Yale Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

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