State Side

State Side

The New Republic has an intresting take on Chief Justice Rehnquist's recent fight against Thyroid cancer. The article contends liberals may actually need Rehnquist's federalist approach:

Indeed, two cases--one before the Supreme Court now, and one which may be soon--show why Rehnquist's conception of states' rights looks better and better to many liberals. On November 29, the Court heard arguments in Raich v. Ashcroft, a case concerning California's medical marijuana statute. The federal government, claiming broad power to fight the drug war, objects to marijuana legalization. California, claiming states' rights, is politely asking the feds to butt out. In an unusual twist, the case has put pot smokers in bed with federalists.

A similar situation could arise next year if the Supreme Court agrees to hear Oregon v. Ashcroft, a case that tests Oregon's assisted suicide law. The dynamics are the same as in the marijuana case: The Justice Department wants to strike down the state law, which allows Oregon doctors to prescribe lethal doses of medicine to terminally ill patients; Oregon wants the federal government to leave the state alone. Oregon won the first two rounds, in lower courts, but Ashcroft has asked the Supreme Court to hear the case.

Two federalism cases, two blue-state causes--suddenly, federalism is looking to many liberals like a worthwhile idea. What a shame William Rehnquist probably won't be around to help out.

Unfortunately, the article also makes it clear, Rehnquist's federalist approach is no longer in fad among judges and potential replacements. Nor is it in fad among others on the Supreme Court. Scalia clings to originalism and Thomas to textualism while the liberal judges say give it all to the Federal government.

I have long thought federalism isn't as scary as many liberals make it out to be. It is a sound jurisprudential theory. Maybe The New Republic is right, that Rehnquist might be a valuable voice for certain cases involving liberal/progressive issues. However, ever since Rehnquist turned his back on his own guiding principles in Bush v. Gore, I have viewed the Chief more as a partisan hack than thoughtful justice. Given his recent bending of federalist principles, there is no guarantee he would become a factor for good. In fact, he is prone to carry out significant evil because his quest to roll back the New Deal is not yet complete.