THE REHNQUIST COURT AND ITS IMPERILED STATES' RIGHTS LEGACY

WASHINGTON -- Will the Rehnquist Court's federalism revolution outlast
the Rehnquist Court?

If Chief Justice William H. Rehnquist retires this summer, as appears
likely, the court's ruling last week that federal drug law trumps
states on the use of medical marijuana will be its last word on
federal-state relations during his tenure.

A hallmark of the Rehnquist Court has been a re-examination of the
country's most basic constitutional arrangements, resulting in
decisions that demanded a new respect for the sovereignty of the
states and placed corresponding restrictions on the powers of Congress.

But what had seemed until very recently to be a legacy in the making
now appears evanescent, perhaps even illusory. Those who thought they
were witnessing a revolution were last week using very different words.

"The federalism boomlet has fizzled," said Michael S. Greve of the
American Enterprise Institute, a conservative research organization
here. Mr. Greve directs the group's federalism project, dedicated to
"rehabilitating a constitutional federalism."

The outcome of the marijuana case had been expected. The 2003 decision
by a federal appeals court in San Francisco that Congress lacked
constitutional authority over marijuana, grown for noncommercial
purposes, that did not cross state lines had appeared ripe for
overruling. A unanimous reversal in the case, Gonzales v. Raich, would
have signified only that the combatants in the federalism wars were
waiting for a more fruitful battleground.

But the decision was a hard-fought 6 to 3, with the chief justice in
dissent along with two of his allies in the federalism cases, Justices
Sandra Day O'Connor and Clarence Thomas. Clearly, the justices had
treated Gonzales v. Raich as a major federalism battleground, and just
as clearly, the chief justice had lost.

And where were the other two members of his usual 5-to-4 majority?
Justice Anthony M. Kennedy joined the majority opinion without
explanation. Justice Antonin Scalia did explain himself, at length, in
terms that gave little comfort to those who viewed the outcome with
dismay.

"A fair-weather federalist," was how Roger Pilon, director of the
libertarian Cato Institute's Center for Constitutional Studies,
described Justice Scalia. Asked for his response to the decision, Mr.
Pilon exclaimed: "A disaster."

The full measure of what was at stake, and what was lost, was provided
by Justice O'Connor's dissenting opinion. It was a cri de coeur from a
justice whose commitment to the federalism agenda had led her five
years ago to vote with the majority to strike down a central portion
of the Violence Against Women Act, which authorized victims of crimes
"motivated by gender" to sue their attackers in federal court.
Intrastate activity that was not essentially economic was beyond
Congress's reach under the Commerce Clause, Chief Justice Rehnquist
wrote for the 5-to-4 majority in United States v. Morrison.

The marijuana decision, Justice O'Connor said in her dissent, was
"irreconcilable" with the Violence Against Women Act ruling and with
United States v. Lopez, a 1995 case that overturned a federal law
prohibiting the possession of guns near schools. The Lopez case "makes
clear that possession is not itself commercial activity," Justice
O'Connor said, and for the court to now deem the possession of
marijuana within Congress's authority "threatens to sweep all of
productive human activity into federal regulatory reach."

It was a complaint the majority barely deigned to answer. "We need not
determine," Justice John Paul Stevens said in the majority opinion,
whether the cultivation and use of marijuana for medical purposes,
"taken in the aggregate, substantially affect interstate commerce in
fact, but only whether a 'rational basis' exists for so concluding."
Clearly it did, he said, adding: "That the regulation ensnares some
purely intrastate activity is of no moment."

For the 85-year-old Justice Stevens, a vigorous dissenter from the
Rehnquist federalism decisions, it was a moment to savor - and not the
only recent one. In some of the most important cases of the past three
terms, on affirmative action, gay rights, the juvenile death penalty
and a federalism decision a year ago that rejected state immunity
under the Americans With Disabilities Act for inaccessible
courthouses, he has managed to pull together and hold a majority.

"Stevens is at the peak of his effectiveness," Professor Thomas W.
Merrill of Columbia Law School, a former deputy solicitor general and
close observer of the federalism cases, said last week. "It is a
remarkable achievement."

Was the federalism revolution ever real and, if so, what happened to
it?

It was a revolution, but a flawed one, in Professor Merrill's view, "a
revolution of convenience" rather than deep conviction on the part of
all five. "They wanted to make a difference, to leave a legacy. It was
something that all five could rationalize themselves into going along
with. But once things started to get on difficult territory, it
started to fall apart."

In a law review article he published two years ago, entitled "The
Making of the Second Rehnquist Court," Professor Merrill proposed that
among the five, Justice Scalia's commitment to Rehnquist-style
federalism was the weakest, the product of a strategic choice by the
justice to ally himself with the four others for the sake of being on
a winning team after concluding that he was unlikely to make headway
with his agenda on abortion, religion, and other social issues.

Professor Mark V. Tushnet of Georgetown University Law Center, the author
of a new book, "A Court Divided: The Rehnquist Court and the Future of
Constitutional Law," said that the earlier decisions had "brought the
justices to a threshold that was far away when Rehnquist joined the court."
And now, he said, "they have to decide whether to stay where they are, or
continue on, or retreat."

The marijuana case "does not necessarily mean a retreat," he said. "It
was an easy case, a case at the heart of national regulatory
authority." Professor Tushnet said a more telling case would be a
challenge to the application of the Endangered Species Act to a
species without commercial utility, found only within one state.

Such a case is on the court's calendar, awaiting the justices'
decision whether to hear it. The question in GDF Realty Investments v.
Norton is whether Congress has authority to apply the Endangered
Species Act to require protection of six species of cave-dwelling
insects that live in caves west of Austin, Tex.

Other cases awaiting action by the court question federal authority
over homemade machine guns and over the possession of child
pornography. In these two, federal appeals courts ruled against the
government, citing the authority of the Supreme Court's Lopez and
Morrison decisions. How much of that authority remains is now the question.

"The court was never clear about what it wanted to accomplish or how
the revolution would play itself out when the first modest steps
bumped up against entrenched political structures," said Mr. Greve of
the American Enterprise Institute.

Like Mr. Greve, other scholars have wondered whether the court was
actually engaged with anything more than "symbolic federalism" that
did not actually threaten federal policies that affected many people.

"The court never reached a stable equilibrium, and now we are in a
period of very robust national commitments, domestic as well as
foreign." Ultimately he said, "it is a revolution that has found no
takers."