Rethinking the Supreme Court’s Impact on Federalism and Centralization

44 Pages Posted: 28 Jan 2022 Last revised: 28 Feb 2022

See all articles by Michael Dichio

Michael Dichio

University of Utah - Department of Political Science

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Date Written: January 27, 2022

Abstract

This article examines the U.S. Supreme Court’s impact on centralizing and decentralizing power in the American federal system. Through an original database of nearly 700 landmark constitutional decisions, we show that the Court has contributed to the centralization of political power, defined in the traditional sense of expanding federal government authority relative to that of states and localities. But it has also promoted decentralization by protecting individual rights against state and local governments. The impact of the Court also tends much more toward decentralization if we classify decisions upholding federal laws against challenge, as neutral, rather than centralizing. These two crucial methodological points have been largely neglected in previous analyses of the Court’s impact on federalism and centralization. There are, in many situations, good reasons to adopt them. We also present multiple models for understanding how the Court affects federalism.

Our analysis calls into question the traditional picture of the Court as a consistent force for centralization. It also raises serious questions about the conventional wisdom on the impact of the Court on centralization during specific periods in American history.

Keywords: Federalism, Supreme Court, individual rights, discrimination, Commerce Clause, States, judicial review, legal history, Spending Clause, Constitutional moments

JEL Classification: H10, H11, H70, H77

Suggested Citation

Dichio, Michael and Somin, Ilya, Rethinking the Supreme Court’s Impact on Federalism and Centralization (January 27, 2022). George Mason Legal Studies Research Paper No. LS 22-03, University of Utah College of Law Research Paper No. 485, Available at SSRN: https://ssrn.com/abstract=4019506 or http://dx.doi.org/10.2139/ssrn.4019506

Michael Dichio

University of Utah - Department of Political Science ( email )

260 S. Central Campus Drive, Room 252
Salt Lake City, UT 84112
United States

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
128
Abstract Views
515
rank
298,729
PlumX Metrics