The U.S. Supreme Court, once intent on bolstering state power at every turn, has yanked in on the reins in a series of recent rulings. But whoever is confirmed to replace retired Justice Sandra Day O’Connor could alter the trend.

Justice O’Connor, 75, announced her retirement on July 1 after nearly a quarter of a century of service, and President George W. Bush, filling his first high court vacancy, named U.S. Appeals Court Judge John G. Roberts Jr. to replace her. If Judge Roberts is confirmed by the U.S. Senate, his philosophy on states’ rights could be pivotal. This year the court restrained state power in decisions involving the Endangered Species Act and medical marijuana laws after a string of opinions earlier this decade that curbed federal authority.

Close Votes

Nearly all recent federalism cases have involved close votes. One of the first orders of business facing the court this fall will be a challenge to Oregon’s assisted suicide law. The position of Justice O’Connor’s successor eventually also could affect decisions relating to using marijuana for pain relief, making state buildings accessible to the disabled and intervening in state elections.

Judge Roberts’ position on states’ rights is largely unknown at the moment.

“It’s hard to predict where people will go, and Judge Roberts doesn’t have much of a paper trail on this at all,” said Kermit Roosevelt, a University of Pennsylvania law professor who once clerked for Justice David Souter.

The Supreme Court began veering away from federalism two years ago when it decided that states are not immune from lawsuits seeking damages for violations of the federal Family and Medical Leave Act. Last year, the court ruled that states could be sued for certain violations of the Americans with Disabilities Act. Another 2004 ruling, Hibbs v. Winn, held that a law prohibiting federal courts from limiting “the assessment, levy or collection of any tax under state law” does not prevent federal suits challenging state laws that grant tax credits.

The court ruled in June that the federal government could enforce its zero-tolerance policy on marijuana, even in 10 states that permit use of marijuana by the chronically ill.

The court also rejected, by refusing to hear it, a states’-rights challenge to the Endangered Species Act in June. Texas, Alaska, Delaware and New Jersey had filed briefs in the case that centered on whether developers could erect an office building near Austin, Texas, despite the presence of small endangered insects found only in the Lone Star State.

States sought sovereign control over wildlife regulation, but the court said federal power to regulate interstate commerce prevailed, even when it comes to protecting species that lack commercial value and live in only one state.

A similar case offers the biggest hint of Judge Roberts’ position on federalism. Judge Roberts placed states’ rights ahead of environmentalists’ concerns in a 2003 opinion involving federal protection of California’s arroyo toad. U.S. senators are expected to use the case to draw out Roberts’ views during his confirmation hearings next month.

U.S. Sen. Charles Schumer, a Democrat from New York, has made public a list of questions for Judge Roberts, such as, “How far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject≠”

Mr. Schumer has asked Judge Roberts to explain his answer in the context of the Supreme Court’s 2004 decision that the EPA has the authority to pursue industrial polluters in Alaska where local authorities have declined to do so.

Mr. Schumer also asked, “What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)≠” Judge Roberts aided the George W. Bush campaign during the 2000 presidential election dispute in Florida, a move that has led critics to question his allegiance to states’ rights.

But regardless who replaces Justice O’Connor, states are unlikely to enjoy the level of support from a new justice they enjoyed from her, said Tim Conlan, a George Mason University political scientist who is an expert on federalism.

“The states are losing an institutional champion with the retirement of Justice O’Connor,” Mr. Conlan said. —

Contact Kathleen Murphy at kmurphy@stateline.org