Guess What Happened on the Way to Revolution? Precursors to the Supreme Court's Federalism Revolution

In recent years, the Rehnquist Court has been accused of ushering in a “federalism revolution.” The Court's decisions have been contentious and often viewed as assertions of the Court's anti-majoritarian power. However, these assessments misunderstand the role of the Court in the American political system. Not only are the Court's recent decisions relatively modest departures from existing constitutional doctrine, but its rediscovery of federalism follows, rather than leads, developments in the elected branches. Efforts to rehabilitate federalism as a political value began in the elected branches as early as the 1960s. By 1980, federalism had become an important cleavage issue between the parties; Republicans advocated a form of “fixed federalism” while Democrats advocated a form of “flexible federalism.” Despite the desire of the Reagan and Bush administrations to use the judiciary to advance the GOP's view of federalism, confirmation hearings for members of the Rehnquist Court demonstrate that Democrats in Congress paid little attention to federalism. Attitudes about federalism thus made their way onto the Court without notice and without challenge, and the sharp disagreements that emerged on the Court during the late-1990s mirror the same party cleavages that developed much earlier in the elected branches.