The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Federalism and the Roberts Court


My recent article on the Roberts Court's record on federalism issues is now available on the SSRN website. It challenges conventional wisdom on a number of points. Here is the abstract:

The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. The extent of these gains is greater than many observers recognize. Much of this progress fits the conventional model of federalism as a left-right ideological issue on the Court, dividing liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest a greater degree of openness to federalism among the liberal justices, and perhaps others on the left.

The article evaluates the extent of the Roberts Court's efforts to enforce federalism. It does not attempt to judge whether the Court got these issues right or wrong. But whether you agree with these decisions or not, they have had an important effect on constitutional federalism, and may well influence future developments after the new president appoints a replacement for Justice Antonin Scalia, who passed away earlier this year.