Federalism and the Conservative Ideology

Abstract

During The Supreme Court's ill-fated attempt to resurrect the tenth amendment, from National League of Cities v. Usery to Garcia v. San Antonio Metropolitan Transit Authority, there was a delightful role reversal which spoke volumes about Supreme Court doctrine and politics. Here were the advocates of judicial activism, the liberal Justices, Brennan, Marshall (and later Blackmun), preaching respect for the acts of a majoritarian body, counselling caution in invoking the dreaded power of judicial review, and arguing that those dissatisfied with legislative decisions must resort to the polls and not to the courts. Here were the advocates of judicial restraint, the conservative Justices, Rehnquist, Burger, Powell (and later O'Connor), exhorting the Court to preserve constitutional rights by striking down offensive legislation, defending the interests of a neglected group ("the States as States"), and fearful that the political process would prove inadequate to protect that group's interests.