Vintage Conservatism

The U.S. Supreme Court is about to turn right. Will that help states? Not necessarily.
August 2005
Donald F. Kettl
By Donald F. Kettl  |  Columnist
Sid Richardson Professor at the LBJ School of Public Affairs at the University of Texas at Austin

Wine merchants across the country toasted the U.S. Supreme Court last May when it ruled that states couldn't bar consumers from ordering wine from out-of-state suppliers. Clint Bolick, the attorney who argued the case for a small Virginia winemaker, called it "the best day for wine-lovers since the invention of the corkscrew."

But as a symbol of the Supreme Court's shifting tendencies, it was more than that. It was the last major federalism case to come before the justices during the tenure of Justice Sandra Day O'Connor, who announced her retirement soon afterward. And it raised the crucial issue of just what the Court's approach to states' rights will be in her absence.

As has been true so often during the O'Connor years, the larger implications of the Virginia wine case were far from clear. For years, conservatives had pressed the Court to reassert the prerogatives of the states against the expansion of federal power. And frequently it did so. Most recently, however, the Court has seemed to back away from a strong states' rights commitment. In addition to reining in state power over wine sales, the justices overruled state efforts to legalize medical marijuana and to contest clean-air standards.

Juanita Swedenburg, the Virginia vintner at the center of the wine case, produced a boutique product that developed a small but devoted following across the country and, when she discovered she could not ship it to New York, "I began to get cross about it and then began to fuss."

In backing Swedenburg, the Supreme Court rejected arguments that youngsters could cruise the Internet to buy liquor across state lines or that rat poison could end up in wine bottles. By a 5-4 vote, the Court sided with the arguments for interstate commerce over those for states' rights.

While conservatives of every stripe are competing for influence over the Court in the post-O'Connor years, the business community has an especially focused set of priorities. Increasingly, it wants to see decisions of the kind made in the Virginia wine case, and to put a brake on strict regulatory measures imposed at the state level. In lobbying for this approach, they are parting company with social conservatives who want a new justice to reverse O'Connor's swing votes backing abortion rights and limiting display of the Ten Commandments.

Of course, any conservative justice who embraces a position favoring business or evangelism could easily support states' rights as well. But as O'Connor's long voting record shows, there are many different brands of conservatism, their implications for states' rights vary enormously, and which road even a "conservative" justice might take is highly unpredictable.

But it is possible to predict several things. First, federalism won't be at the center of the confirmation battles on the horizon. The public debate will be about abortion rights, religious expression and other social and moral questions. The implications for federalism will become clear only as the decisions of the new Court are unveiled.

Second, the push to seal a conservative Supreme Court won't necessarily create a pro-states' rights Court. Despite efforts by Justice Antonin Scalia, among others, to fall back on the original intent of the Constitution's framers, the fight for conservative causes could easily produce pressures for federal power to trump the states. Conservatives have learned the lessons the liberals taught a generation ago: It's often easier to fight the big battles once, at the federal level, than in 50 state houses. This is one principle that the Christian Right and the chambers of commerce seem to share.

Third, whatever the future Court may do on states' rights, administrative actions continue to impose a shift to federal power. For example, the states are waking up to the "clawback" provision in the new Medicare prescription drug program, which mandates billions of dollars in long-term costs to state treasuries as part of a complex funding formula. Whatever the courts might giveth, the budget and accompanying regulations can taketh away, in spades.