Judicial Power and the Restoration of Federalism

Abstract

A series of decisions by the United States Supreme Court raises the question of whether the federal judiciary will help to induce a major shift toward decentralization. Despite the ambitious hopes of some observers and the desperate fears of others, there are reasons to doubt that the Court will implement such a program. The justices are unlikely to persist in protecting states' rights in part because of their own ambivalence and in part because the idea itself is too self-contradictory to support a consistent interpretive agenda. Even if the Court were to overcome these problems, it lacks the capacity to control the relevant behaviors and attitudes. The main potential political allies in a states'-rights campaign—state officials and populist dissenters—are unlikely to have interests compatible with judicial norms or to be effective voices for federalism. In fact, general social and cultural conditions seem to favor further centralization.