The Short Life of Rehnquist’s Long View

Chief Justice William Rehnquist may or may not retire in the next few weeks, but a U.S. Supreme Court decision handed down Monday suggests that the curtain has already fallen on his jurisprudential legacy.

Academics and commentators, like American Enterprise Institute Scholar Michael Greve, credit the Chief Justice with “resurrect[ing] federalism as a judicially enforceable constitutional principle.”  But, during the past several terms, the Chief’s five-justice coalition — aptly referred to as the “federalist five,” comprising Chief Justice Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas — has been unable to complete the constitutional paradigm shift in re-establishing state sovereignty as a significant limit on federal power.

Just a decade ago — a relatively short time in the Supreme Court’s jurisprudence — Chief Justice Rehnquist’s vision of federalism seemed to have become orthodoxy when he announced the High Court’s decision striking down the federal Gun-Free School Zones Act in a landmark Commerce Clause case, United States v. Lopez.  In that case, the “federalist five,” led by the Chief, noted that the “Constitution creates a Federal Government of enumerated powers.  As James Madison wrote, ‘the powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.’”  And, as a result of those “first principles,” the federal government could not properly police local schools, even for firearms, since the “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”

Indeed, according to the Chief, “to uphold” the Gun-Free School Zones Act, the justices “would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”  This, the “federalist five” was “unwilling to do” because the “Constitution mandates … withholding from Congress a plenary police power that would authorize enactment of every type of legislation.”

Fast forward ten years, and the federalism revolution that Chief Justice Rehnquist led — and that was to be his constitutional legacy — now seems to be in full retreat.

Monday, a six-justice majority — including Justices Scalia and Kennedy of the “federalist five” — ruled that Congress could constitutionally and categorically prohibit “the intrastate manufacture and possession of marijuana” even when explicitly and legislatively permitted by a state in cases of medical necessity.  Never mind that the activity was wholly local, with the drug being produced, possessed and consumed in California, never entering interstate commerce or even intrastate commerce.  Never mind that Californians had specifically enacted their own law allowing for the production, possession and consumption of marijuana by those with an approved and prescribed medical need.  In other words, never mind the Commerce Clause’s enumerated limit on federal legislative and regulatory power that was designed to protect a state’s sovereign dignity.

Thus, Monday’s decision marked the unmistakable counter-revolution that is being fought to undo the Chief Justice’s constitutional accomplishments limiting federal power and promoting states’ rights.  In fact, with the exception of noticeable age, a few gold stripes on his robe and a couple of colleagues joining him, Chief Justice Rehnquist was in the same position on Monday, announcing the decision in Gonzales v. Raich as he was thirty years ago — in dissent, arguing that a state has a constitutional right to be free from the federal government reaching beyond its enumerated powers.

It now seems as though very little has changed with regard to federalism since Chief Justice Rehnquist joined the High Court in 1972.  Surely the Chief wishes that Duke Law Professor H. Jefferson Powell had been correct when he observed two years ago that the Chief “shifted the center of the discussion so far it would take a long time to shift it back.  He took the long view, and he has won.”  Unfortunately, based on Monday’s decision Chief Justice Rehnquist’s long view of the Commerce Clause has been short lived.