Political punditry has it that the next President will probably have the opportunity to appoint between two and four new Supreme Court Justices. Whether this fact will have an effect on the election is less clear. Abortion rights supporters and opponents, state's rights supporters and opponents, civil rights supporters and opponents - all are convinced that the judicial appointments of the "other side's" candidate will mean the end of civilization as we know it. Those groups are likely to promote the issue heavily; the question is whether citizens who aren't passionate about such issues will pay attention.
More "objective" court watchers like to point to past President's judicial appointments that didn't turn out quite the way the President expected. (I use the word "objective" loosely, as it's my opinion that "objectivity" is a function of whose ox is getting gored.) David Souter is frequently held up as an example of this: Nominated by President Bush, and "expected" to be conservative, Souter has turned out to be one of the consistently liberal members of the court. It is far less often that we are reminded that most of President Reagan's appointees have voted fairly consistently as "conservatives" since their appointments, and President Clinton's appointees have been pretty firmly ensconced on the "liberal" wing of the court. Clearly, a President's ideological leanings do matter in the majority of Supreme Court appointments.
Many feminists (including myself) are concerned about the future of a woman's right to choose to terminate a pregnancy. (An excellent analysis of this concern has been prepared by Pro-Choice Guide Margaret Sykes.) However, I believe the conservative tilt toward states' rights by the Court is equally important. Indeed, the two issues are intertwined: If Roe v. Wade is overturned, it will likely be done under the guise of returning the issue to the states. Many conservatives, including Presidential candidate George W. Bush, have already made the point that Roe v. Wade was wrongly decided - not because of the moral implications of abortion, but because they believe that the right to make laws regarding abortions - including laws prohibiting them - belongs to the states.
The four oldest Justices (Stevens, Rehnquist, O'Connor, and Ginsburg) are at or near "traditional" retirement age. In addition to that, three of those justices (Stevens, O'Connor and Ginsburg) have had battles with cancer. Abortion-rights supporters are quick to note that all three of those Justices are part of the pro-choice majority on the current Supreme Court. However, O'Connor's vote has also been the deciding factor in several narrowly decided "states' rights" cases which have severely limited federal power to enforce federal laws in recent years.
In recent rulings, the conservative majority has been consistently activist in the area of "states' rights." States have been increasingly protected from Federal laws, most often by a 5-4 ruling. Justice O'Connor has ruled for state immunity from federal laws in most of these cases, the notable exception being the recently decided Stenberg v. Carhart, which struck down Nebraska's "partial-birth" abortion ban, Yet, in her separate concurring opinion, O'Connor made it clear that she does, in general, consider such restrictions a matter of states' rights.
We have all heard of "jury nullification," in which juries rule contrary to the law because they don't agree with the law. It seems to me, that in its unrelenting activism toward states' rights, this Court has engaged in a kind of incremental "judicial nullification" of the 14th Amendment. I use this term because the Supreme Court's responsibility is to interpret the Constitution, not change it. Since the 14th Amendment is part of the Constitution, and yet seems to have been rendered virtually unenforceable under these decisions, "judicial nullification" seems to be the only appropriate description. I'm not a lawyer, of course, and I expect some lawyers would take issue with the term. But let's take a look at recent Supreme Court Decisions, and you can make up your own mind about whether my use of the term is justified.
States' Rights Background
The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system, and that it is essential to the nature of "sovereign immunity" that an individual can't sue "the state" without the state's consent. However, this sovereignty has generally not been held to confer complete immunity upon states within the federal system.
The Constitution grants Congress the right to abrogate a state's "sovereign immunity" in two sections: The Commerce Clause, (Article 1, Section 8) which gives Congress the authority to regulate commerce among the states (and Indian Tribes); and the "Enforcement Clause" (Section 5) of the 14th Amendment, which gives Congress the power to pass laws to enforce the guarantee of equal rights to all citizens.
The Supreme Court has held in past years that such abrogation of states' sovereign immunity is constitutional, if Congress unequivocally states its intention to do so, and is acting "pursuant to a valid exercise of federal power." Both sections have been used, to some degree, in passing civil rights legislation, as I pointed out in my article Freedom from Rape. And recent Court decisions have substantially - and progressively - limited Congressional authority in both areas.
This Court's decisions
In the 1995-1996 term, the Court said, in deciding Seminole Tribe v. Florida, that the 11th Amendment prevents Congress from unilaterally authorizing Indian tribes to sue States in federal court to enforce legislation based on the Commerce Clause. This means that a state can not be sued in federal court to enforce federal laws without the consent of the state, even if the law was passed as a "valid exercise of Congressional power, and even if Congress specifically stated its intent to abrogate state's sovereign immunity with the law.
Although that ruling said that Congress still retained the power of "explicit abrogation" under the Enforcement Clause of the 14th Amendment, the Court significantly restricted that power in a following decision, City of Boerne v. Flores. In that case, the Court restricted Congressional enforcement-clause powers by requiring "congruence and proportionality" between 14th Amendment violations by the states and the Congressionally-legislated remedy.
In the 1998-1999 term, Supreme Court decided, by identical 5-4 votes, three cases that virtually wiped out Congress' capacity to make a state's legal obligations judicially enforceable: Alden v. Maine, Florida v. College Savings Bank, and College Savings Bank v. Florida. In each of these cases, the majority consisted of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas.
In Alden v. Maine, Court ruled that state workers may not enforce federal minimum-wage laws in state courts, without the consent of the state. In other words, having already prohibited lawsuits against states brought in federal courts in Seminole Tribe, in Alden, the Court now prohibited lawsuits against states in state courts as well.
In the College Savings cases, the question was a little different. In the law being challenged, Congress had amended Federal patent law to specifically state its intent to abrogate state sovereign immunity and to explicitly define activities which would constitute a state "waiver of sovereign immunity" under that law. By adding language which, in effect, said, "by engaging in these activities, a state officially consents to become subject to this law," Congress intended to address the "consent of the state" issue upon which the previous two cases had been ruled unconstitutional.
In College Savings v. Florida, the Court held that state immunity can only be waived "when a State voluntarily invokes, or clearly declares that it intends to submit itself to, the jurisdiction of the federal courts." In drafting the amendment to federal patent laws, Congress had relied on a 1964 precedent, Parden v. Terminal Rail Road Co., which held that "an implied or constructive waiver is possible when Congress provides unambiguously that a State will be subject to private suit if it engages in certain federally regulated conduct and the State voluntarily elects to engage in that conduct." The court simply dismissed that reliance by stating that the ruling in Parden had never been applied to another statute, had in fact been narrowed in subsequent cases, and, finally that "[w]hatever may remain of this Court's decision in Parden is expressly overruled."
In the "companion" case, Florida v. College Savings, the Court further restricted Congressional enforcement-clause powers by adding a requirement that any legislation enacted as an exercise of the enforcement clause powers must "respond to a history of widespread and persisting deprivation of constitutional rights," not just a particular instance of a state depriving an individual of his or her constitutional rights.In the current term, the Court ruled in Kimel v. Florida Board of Regents, that state governments are shielded against federal age-bias claims by the doctrine of Sovereign Immunity, again, by the same 5-4 split that the previous term's cases were decided.
In Vermont Agency of Natural Resources v. U.S. ex rel Stevens, the Court ruled that a state cannot be sued under the False Claims Act. This act, also known as the whistle-blower law, permits an individual to file a civil action on behalf of the federal government against "[a]ny person" who "knowingly presents a false or fraudulent claim for payment" to the government. However, the Court ruled that states' 11th Amendment sovereign immunity does not permit an individual to file such suits against a state or a state agency, even if that state is defrauding the federal government, and thus, the American people.
Having virtually prohibited lawsuits against states for violations of federal laws, whether in federal court or state courts, in United States v. Morrison, the court ruled that Congress also could not provide a federal civil remedy to individuals against individuals, if the action arose out of acts which fall under state jurisdiction (in this case, rape) - despite Congressional findings of a "history of widespread and persisting deprivation of constitutional rights and despite 36 states explicit consent to the law.
The majority opinion indicated that the statute should have provided a federal remedy against state actors, if they fail to provide "equal protection" to victims of rape. But, as we've seen, this court has already held federal remedies against state actors to be unconstitutional in both federal courts and state courts.
Funny, I thought that part of being an "American" meant that citizens were guaranteed certain basic rights no matter which state they live in. I'd be willing to bet that the authors of the 14th Amendment intended to provide Congress with the power to insure that no state in this nation can fail to protect those fundamental rights and get away with it. I guess they just didn't count on this Supreme Court.
When we extend the logic and restrictions the Court imposed in these cases to other civil rights laws, it appears that there is no way to for Congress to enforce the "equal protection" guarantee of the 14th Amendment, and no way for the federal government to provide a remedy for those who have not received "equal protection." Looking at all these facts, again, the only term I find appropriate is "Judicial Nullification."
The Presidential Candidates
George W. Bush has stated that he would appoint Supreme Court justices "in the mold of" Justice Scalia and Justice Thomas, two of the Court's staunchest supporters of "state's rights." Al Gore has stated that he would appoint Justices who would interpret the Constitution in the tradition of Thurgood Marshall and William Brennan, two of the Court's most ardent supporters of civil rights.
Legal scholars will point out that the states' rights cases I've mentioned were decided on the specific circumstances of the case, and do not necessarily completely abrogate Congressional power to enforce the equal protection guarantees of the 14th Amendment. And that's true, to an extent. Other cases will most certainly have different circumstances, and could lead to different decisions. Perhaps some day even the Rehnquist Court will actually find a Congressional use of its Enforcement Clause powers to be constitutional. It is even possible that George W. Bush, should he win the election, will be "surprised" by his judicial appointees, as his father was surprised by Justice Souter. But I wouldn't bet the farm on it, I wouldn't bet my rights on it, and I certainly wouldn't bet my vote on it.