Dissing States?: Invalidation of State Action During the Rehnquist Era
Ohio State University (OSU) - Michael E. Moritz College of Law
Kevin M. Scott
United States Department of Justice
Forthcoming in Virginia Law Review
The "federalism revolution" under Chief Justice Rehnquist's leadership has been the subject of considerable discussion with some legal commentators suggesting that the Court has invalidated federal action in order to protect state sovereignty. By contrast, political scientists routinely argue that ideology rather than federalism can best explain the voting behavior of Supreme Court Justices. Neither of these arguments has involved close examination of the Rehnquist Court's record with respect to invalidating state action.
In this article, Ruth Colker and Kevin Scott use quantitative and qualitative analysis to ask what factors predict a vote to invalidate state action during the Rehnquist era for individual Justices, paying particular attention to the federalists. They find that conservative ideology as well as some criteria for federalism can help explain the invalidation results for Justices Rehnquist and Thomas and, to a lesser extent, Scalia. But they also find that Justices O'Connor and Kennedy do not fit the pattern found for the other federalists. In fact, they find that four different versions of "federalism" explain the voting behavior of the federalists on the Rehnquist Court.
Colker and Scott's data do not support the argument expressed by some political scientists that federalism plays virtually no role in explaining the voting behavior of the Supreme Court. Their data, however, do support the argument that the labels -- activist, conservative, and federalist -- best describe the legacy of the Rehnquist Court in considering its pattern of invalidating state action. Law is not only politics, but acting consistently with a conservative ideology is an important predictor of the voting behavior of the core federalists on the Rehnquist Court.
Number of Pages in PDF File: 77
JEL Classification: H7, K1
Date posted: June 25, 2002