States and the new high Court: states have a different standing in the U.S. Supreme Court without their two champions of federalism.

Last summer, on successive holiday weekends, the Supreme Court lost its two greatest modern champions of the states and the cause of federalism. Justice Sandra Day O'Connor, the only state legislator to serve on the court in recent decades, announced on the eve of the Fourth of July weekend that she was retiring after 24 years. And on Labor Day weekend, Chief Justice William H. Rehnquist died of cancer at age 80.

Both came to the high court from Arizona, and despite their long careers in the nation's capital, neither came to believe that all wisdom lies in Washington. Instead, they proudly retained the spirit of Westerners who knew the country could get along day to day just fine without being told what to do by federal regulators.

O'Connor served as a state judge and a state lawyer before becoming majority leader of the Arizona Legislature, and she triggered the revival of federalism with a pair of opinions in the early 1990s.

"The authority of the people of the states to determine the qualifications of their most important government officials ... is an authority that lies at the heart of representative government," she wrote in 1991. "It is a power reserved to the states under the 10th Amendment and guaranteed them by that provision of the Constitution under which the United States guarantees to every state in the Union a republican form of government." Her opinion in Gregory v. Ashcroft rejected the argument that the federal law against age discrimination barred states from forcing judges to retire at age 70. (Defending the law was then-Missouri Governor John Ashcroft, later to be U.S. senator and U.S. attorney general.)

The next year, O'Connor spoke for the Court in declaring unconstitutional an act of Congress that required the states to select a dump site for nuclear waste at the direction of federal officials. "States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the federal government," she wrote in New York v. United States. "The positions occupied by state officials appear nowhere on the federal government's most detailed organizational chart. The Constitution instead 'leaves to the several states a residual and inviolable sovereignty,'" she wrote, quoting James Madison from the Federalist Papers. O'Connor concluded by saying the "federal government may not compel the states to enact or administer a federal regulatory program."

Those opinions set forth the themes that would be heard often over the next decade--that states have an independent status in the American system of government and they need not bend to commands from Washington.

LIMITING FEDERAL POWER

Rehnquist was often a lonely voice of dissent during his early years on the high court. By the mid-1990s, however, when he had a majority behind him as chief justice, he announced new limits on federal power. In the 1995 case of Lopez v. the United States, the Court struck down a federal law that regulated gun possession in school zones, marking the first time in 61 years that the justices said Congress had exceeded its law-making power. Rehnquist began by quoting James Madison's observation that the Constitution gave to the new federal government powers which "are few and defined" while leaving to the states powers that "are numerous and indefinite."

Rehnquist said the justices must limit federal power to preserve the Constitution's "distinction between what is truly national and what is truly local." A year later, in the case of Seminole Tribe v. Florida, Rehnquist said the states have a "sovereign immunity" that shields them from being sued in federal court, even by those who are invoking a federal law.

Many state lawyers say they are confident those opinions by Rehnquist and O'Connor will live on in the law.

"The revitalization of federalism was one of the most significant legacies of the Rehnquist Court," says R. Ted Cruz, the Texas state solicitor and a former clerk to Rehnquist. O'Connor and the late chief justice "respected the role of the states in our constitutional system, and they put structural constraints on federal authority," Cruz says. "They believed, along with Madison, that by respecting the constitutional authority of the states and limiting the constitutional authority of the national government, the liberty of the people is ultimately best secured."

THE NEW FACES

Rehnquist was, of course, succeeded by one of his former clerks, new Chief Justice John G. Roberts--a first in the Court's history. After graduating from Harvard Law School, Roberts came to Washington to clerk for Rehnquist in 1980, and he never left. He joined the incoming Reagan administration in 1981 and worked for the attorney general and in the White House counsel office. And in between two stints in private practice, he served as the deputy U.S. solicitor general in first Bush administration.

O'Connor's replacement, Justice Samuel A. Alito Jr., also spent his formative years as a Reagan administration lawyer in Washington.

Pepperdine University Law Professor Douglas W. Kmiec, himself a former Reagan administration lawyer, worked with both Roberts and Alito, but says he is not entirely confident about the future of the "federalism revolution" in the Roberts Court.

"There is no question John Roberts has enormous respect for the work of Chief Justice Rehnquist," he says, but it is not clear that either Roberts or Alito shares their predecessors' deep commitment to the states. Both, after all, spent much of their careers as executive branch lawyers in Washington, he notes.

"Coming from Arizona, they [Rehnquist and O'Connor] had a feel for federalism that was born out of lived experience. Roberts and Alito have a feel for it as part of the political philosophy of the administration where they worked," he says.

Kmiec also says Rehnquist's federalism revolution "had suffered a bit of erosion" by the time of his death. Last year, for example, the Court rejected the states' bid to set their own rules for marijuana and alcohol. Voters in states led by California said seriously ill people may grow and use "medical marijuana" to relieve their pain and nausea. The Bush administration, however, said these marijuana users were violating the federal drug-control laws. Two women who grew and used marijuana sued and cited Rehnquist's opinion in the Lopez case. If the federal power over interstate commerce does not extend to mere gun possession, how does it extend to possession of home-grown marijuana, they asked. But the high court in Gonzales v. Raich sided with the federal government over the states, despite dissents by Rehnquist, O'Connor and Clarence Thomas. Justices Antonin Scalia and Anthony Kennedy, usually allies of Rehnquist in federalism cases, said the federal drug-control laws trump California's medical marijuana initiative.

That decision "seemed to signal the end of one part of the federalism revolution. It showed the Court lacked the ability to set a bright-line principle that would distinguish between what is national and what is local," Kmiec says.

The states fared no better in enforcing their traditional power over the sale and distribution of alcohol. About half the states had, by law, barred mail-order shipments of wine from crossing their borders and going directly to consumers. They did so by virtue of the 21st Amendment, which repealed national prohibition and appeared to give the states legal control over the importation of alcohol. Nonetheless, the Court, in a 5-4 decision in Granholm v. Heald, struck down the states' ban on direct wine shipments as violations of the Constitution's protection for free-flowing interstate commerce. Again, Scalia and Kennedy joined with the majority opinion that struck down the state's restrictions.

At the time of Rehnquist's death, the Court's stance on "state sovereign immunity" also had become something of a muddle. A series of 5-4 rulings had declared the states were shielded from being sued under certain federal laws. For example, in 2001, the Court held 5-4 in Alabama v. Garrett that a disabled state employee could not sue a state hospital for discrimination under the Americans with Disabilities Act. But last year, the Court held 5-4 that a disabled court reporter who was in a wheelchair could sue the state under the Americans with Disabilities Act because it had failed to install ramps or elevators in its old courthouses (Tennessee v. Lane). The outcome can be explained simply by the fact that Justice O'Connor switched sides. But the series of close votes and the uncertain rationale suggest it will remain unclear for some time under what circumstances state agencies can and cannot be sued for allegedly violating private rights protected by federal law.

STATES BEWARE

"I'm not optimistic about the Roberts Court. I think it will move considerably nationalist in its direction," says University of Texas Law Professor Ernest Young. Although the federalism pronouncements of the Rehnquist era were important, they were "largely symbolic," he says.

By contrast, the preemption decisions were often overlooked but had more practical significance, he says. "By that standard, the Rehnquist Court was nationalist too, and I think the Court will continue in that direction."

To take one example, the Court in 1987 handed down a little noticed, unanimous decision in Pilot Life Insurance v. Dedeaux that threw out an injured worker's lawsuit. By the 1990s, state legislators, officials and many consumers were upset to learn that health insurance plans were essentially off-limits to state regulations or ordinary lawsuits. Why? Because the Supreme Court in the Pilot Life case had said all these matters involving "employee benefits" were preempted by a federal law, the Employee Income and Retirement Security Act of 1973.

"It seems that the federalism fights where the states win are mostly symbolic, but the cases they lose are enormously important," Young says.

Daniel Schweitzer, Supreme Court counsel for the National Association of Attorneys General, agrees that preemption battles are crucial to the real balance of power between Washington and the states. "Preemption is becoming more and more important. It is increasingly the battleground," he says. On issues as varied as banking, food labeling and environmental protection, Congress and federal agencies are pressing to set rules that would preempt the authority of the states, he says.

In the recent past, the Supreme Court has a mixed record on these questions, sometimes siding with the states and sometimes with the federal government. "It's very hard to define a trend. So much depends on the nature and wording of the federal statute," Schweitzer says.

As a guide to the future, Professor Young says the backgrounds of the justices matter greatly. "We don't have an O'Connor now. She grew up in state government, and had a lot of confidence in the states. Roberts grew up in the federal system as a lawyer representing the executive branch. You saw that orientation in the Oregon case," he says.

He was referring to the ruling in January in Gonzales v. Oregon. In a 6-3 decision, the justices rejected the Bush administration's bid to void the nation's only right-to-die law. Oregon's voters had twice approved the Death with Dignity Act, a measure which permits people who are terminally ill and nearing death to obtain a dose of lethal medication from a doctor. In the past, the Court had said decisions on physician-assisted suicide should be made by the states, not federal courts. Moreover, the practice of medicine and the regulation of doctors had been a traditional realm of state authority. But in 2001, Attorney General John Ashcroft decreed that prescribing a lethal dose of medication was not an accepted medical practice and therefore violated the federal drug control laws. In his first major decision, Roberts joined Scalia and Thomas in dissent, thereby siding with federal authorities over Oregon's state policy.

"I'm sure the new justices care about the states," Young said, "but what they really care about is executive authority."

David G. Savage is the U.S. Supreme Court correspondent for the Los Angeles Times.