Rehquist and federalism

While it was surely expected, I was sorry to hear Rehnquist lost his struggles with health problems. And while I don't know the man, his fingerprints on the state of current jurisprudence are well powdered.

Mark Tushnet has a very good column in salon.com on the largest impact Rehnquist implimented on the Court--reshaping federalism, the allocation of powers between federal, state (and local) governments.

Tushnet's larger point is that Rehnquist himself had less impact than did the Court over which he presided. This, of course, might be the stuff of issues taken by other jurist-watchers...could it be said, perhaps, Rehnquist was extremely effective in shaping the Court, as well as the federal judiciary?

In any event, the jurisprudence of federalism has surely shifted through Rehnquist's tenure--from a New Deal era expansive powers of Congress to the current Court, where supposed 'Conservative' jurists strike down more laws passed by Congress than ever before. While Congress appreciated a broad ability to control national policy through it's taxing, spending and commerce powers through the middle part of last century, that breadth has eroded notably.

Well and good. Where I might differ from most commentators is in the quick conclusion most make that this is a Conservative development. I'm not sure what about power allocations between localized and federal government has to do with idealogy. Rather, it is when "state's rights" is trumpeted as a step-in for something else that the issue becomes partisan: ie, where state's rights = slavery/ racism/ anti-regulation/libertarianism...where, in other words, the proponent in fact favors no government presence (including the state's). But so long as the debate is about who should regulate, as opposed to whether there should be regulation, it is an honest and non-politicized question of who is in the better position to set policy. And while Rehnquist did not always follow the intellectually honest line I have proposed, he did so more than most commentators aknowledged.

As for the effect of this shift in federalism, Tushnet writes:

Only the Supreme Court's future rulings can indicate which direction it will go with regard to Rehnquist's primary contribution -- convincing the court that it has the option of invalidating national laws.

We'll have fun watching.