This article broadly examines the conservative Rehnquist Court's federalism doctrines and, in doing so, explores the connections between judicial conservatism and a commitment to federalism. Three conclusions emerge. First, although the Court has moved aggressively to advance federalism through well-known doctrines, it frequently proves more substantively conservative than it does pro-federalism when deference to state processes would shield liberal outcomes from federal reversal. Second, path dependence largely explains why the Court, to the puzzlement of some, has relied heavily on sovereign immunity doctrine while proceeding cautiously in limiting Congress's powers under the Commerce Clause. Third, when path dependence precludes the Court from advancing its vision through constitutional holdings, the pro-federalism majority has deployed a phalanx of sub-constitutional devices to protect local governments, especially from private lawsuits seeking damages. Overall, the Court's federalism revolution is distinctively a lawyers' revolution, with much of the significance inhabiting the often Byzantine details.
Fallon, Richard H. Jr.
"The "Conservative" Paths of the Rehnquist Court's Federalism Decisions,"
University of Chicago Law Review: Vol. 69
, Article 1.
Available at: http://chicagounbound.uchicago.edu/uclrev/vol69/iss2/1