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Rehnquist and Federalism: An Empirical Perspective

29 Pages Posted: 4 May 2005  

Ruth Colker

Ohio State University (OSU) - Michael E. Moritz College of Law

Kevin M. Scott

United States Department of Justice


We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist demonstrates the respect for the balance between state and federal governments which he has articulated in so many of his opinions. We generally find support for the proposition that Chief Justice Rehnquist adheres to the tenets of federalism. We conclude that, while there is an ideological component to Chief Justice Rehnquist's jurisprudence, there also appears to be evidence of a sincere commitment to the protection of the line between national and state governments.

Keywords: national league of cities, wirtz, fry, fitzpatrick, rome, hibbs

JEL Classification: H11, H77, K19

Suggested Citation

Colker, Ruth and Scott, Kevin M., Rehnquist and Federalism: An Empirical Perspective. THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, 2006. Available at SSRN:

Ruth Colker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
(614) 292-0900 (Phone)
(614) 292-2035 (Fax)


Kevin M. Scott

United States Department of Justice ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States

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