[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a constraint on federal power. The federalism decisions are the product of a Court, with five conservative members, deeply committed to protecting state governments from federal encroachment. Virtually all of the recent Supreme Court cases, including Bush v. Gore1 and the federalism decisions, have been five-four decisions, with the majority comprised of Rehnquist, C. J.; O’Connor, J.; Scalia, J.; Kennedy, J.; and Thomas, J. From a practical perspective, these five Justices are the Rehnquist Court. In the October 2000 Term, for example, the Court decided seventy-eight cases; twenty-six were resolved by a five-four margin and in fourteen of those, the majority was comprised of Rehnquist, C.J.; O’Connor, J.; Scalia, J.; Kennedy, J.; and Thomas, J. In the October 2002 Term, the Court decided seventy-three cases and fifteen were decided five-four, with this grouping being the most frequent majority in six cases. These five Justices revived federalism in three major ways. First, the Rehnquist Court created new limits on the scope of Congress’ powers. Particularly, the Court placed limits on Congress’ authority to legislate under the Commerce Clause and under Section Five of the Fourteenth Amendment. Second, the Court greatly expanded the scope of state Sovereign Immunity and protection from suit in federal court. Third, the Court reversed course and held that the Tenth Amendment is a limit on Congressional power; specifically, that Congress cannot compel state legislative or regulatory action. Individually, and especially collectively, these three doctrines dramatically changed the law. The Rehnquist Court’s federalism revival is profoundly misguided because it denies the federal government needed authority to achieve important social objectives, especially advancing freedom and equality. This article considers what the Rehnquist Court has done in each area and why the decisions are undesirable changes in the law.
Erwin Chemerinsky, The Rehnquist Revolution, 2 PIERCE L. REV. 1 (2004). Available at http://scholars.unh.edu/unh_lr/vol2/iss1/3