Federalism by Convenience: The Supreme Court's Judicial Federalists on the Death Penalty and States' Rights Controversies

• Author: David Niven, Ph.D./Kenneth W. Miller, J.D.
• Position: Visiting Fellow, Center for Law, Policy and Social Science, Moritz College of Law, The Ohio State University/Ph.D. candidate, School of Justice and Social Inquiry, Arizona State University
• Pages: 567-622

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"Nothing has more perplexed generations of conscientious judges than the search in juridical science, philosophy and practice for objective and impersonal criteria for solution of politico-legal questions put to our courts. "¹

I Introduction

The Rehnquist Court has gained a reputation as the guardian of states' rights.² It is widely perceived that the current Court consistently enforces constitutional limits on the federal government's power, implying wide freedoms for the states.³ Observers have noted that the Court, by repeatedly defining the powers of the federal government in a limited way and broadly characterizing the states' discretion, has fundamentally altered the power relationship in government.⁴

Consistent with its purported value of states' rights, the Court's conservative lustices have sought to quell Court scrutiny of state death penalty laws and practices, reasoning that the states should be left to exercise their own judgment and that the federal government and the Court itself need not have a role.⁵ Consistency on states' rights, while extending to many issues beyond the death penalty, is noticeably absent in controversies in which deferring to the states would amount to deferring to a liberal agenda.⁶ In cases ranging from how the states run their ownPage 568 elections to how they regulate business, members of the Court's conservative block have weighed in against the freedoms of state and local governments.⁷

This Article explores the implications of the Court's selective embrace of states' rights. It suggests the possibility that political convenience, not democratic theory, guides the Court's conservative members as they urge for protection of state decisions regarding the death penalty while attacking their regulation of business. Part II of this Article explores the proper role of judicial review within the context of the rule of law. This Part briefly reviews contemporary prescriptions for legitimate judicial decision-making, including the Court's own pronouncements in a recent decision, and notes that despite a divergence of views among the leading commentators, there is a shared vision of jurisprudential consistency and legitimacy. Part II concludes with a review of recent scholarship that suggests despite the Rehnquist Court's reputation for states' rights (a theory we label judicial federalism), political ideology often plays a larger role than putative federalism. Part III explores the current climate on the Court that has led to its reputation as the guardian of states' rights. It discusses the Court's case for states' rights both as a matter of law and history, and it highlights the colorful rhetoric offered on behalf of states. It also discusses several analyses, including those from within the Court, that find the basis for states' rights less than overwhelming. Parts IV and V comprise the heart of the Article's analysis. Part IV examines the explicit and implicit invocations of judicial federalism in the Court's capital jurisprudence. Time and again the Court's judicial federalists urge deference to the states and a concomitant reining in of federal power in death penalty appeals. Part V, by way of contrast, analyzes a series of decisions in which the Court's judicial federalists seemingly ignore their stated preferences to defer to the states and instead assert federal control to assure a substantively conservative outcome. The Article suggests that the Rehnquist Court's reputation for judicial federalism is not entirely accurate. Rather, the conservative Justices on the current Court practice a form of convenient federalism, one which gives way to substantive conservatism. This has implications both for the legitimacy of the Court and for our cultural and legal understanding of the death penalty.

One matter of terminology should be addressed first. Numerous commentators have noted the Rehnquist Court's elevation of a "States' Rights" doctrine as an important principle when policing the boundariesPage 569 between federal and state sovereignty.⁸ This Article adopts the term "judicial federalism" to describe this structural theory of constitutional interpretation. Judicial federalism is the doctrine that generally limits federal interference with state action where it "would be considered an improper intrusion" into the realm of state power.⁹ This "improper intrusion" is defined in two important ways. First, judicial federalism promotes powerful state governments by limiting the reach of the federal government under the Commerce Clause, the Fourteenth Amendment, and the Eleventh Amendment.¹⁰ Second, judicial federalism grants deference to state court decisions on matters of state law, factual and evidentiary matters, and even on matters of federal law.¹¹ In short, judicial federalism serves as the analytical focus of this Article's research and is a structural theory that grants great deference to state governments and courts. It, correspondingly, retracts the power of the federal government and federal appellate courts. In this respect, judicial federalism can be understood interchangeably with the terms "States' Rights" and "constitutional federalism."

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II Judicial Review, the Rule of Law, and Supreme Court Legitimacy

A critical component of the American conception of the rule of law is the power of judicial review. Simply put, judicial review is the power of courts to determine whether government actions or inactions violate the Constitution.¹² Although the nature, extent, and wisdom of judicial review have been the targets of sometimes heated debate,¹³ judicial review is clearly an institution that continues to influence the landscape of the American political system. Indeed, judicial review is a jurisprudential fact,¹⁴ and we assume its existence and importance. The concern is, given judicial review, how does the Supreme Court approach matters of constitutional adjudication? In other words, how does, and should, the Supreme Court exercise its authority?¹⁵ Assuming that the Justices are individuals with intractable and deep-seated world views, constitutional adjudication nevertheless should be principled, transparent, and consistent rather than ideological, secretive, and results-driven. Constitutional adjudication should not be idiosyncratic or ad hoc.

We are certainly not alone in desiring consistency and principled predictability in constitutional adjudication; most contemporary theories of constitutional decision-making are based to a large extent on such notions. Ronald Dworkin argues that the Court should adopt morally coherent principles when deciding the cases.¹⁶ The Constitution, Dworkin quickly concedes, is comprised of abstract clauses, but he proposes that the Court "interpret and apply these abstract clauses on the understanding that theyPage 571 invoke moral principles about political decency and justice."¹⁷ He argues that law is "drenched" in theory, even if we tend to disagree with what that theory might be.¹⁸ For Dworkin, however, it is important-and unavoidable-that judges engage in reasoning from the "inside out."¹⁹ In other words, when judges adjudicate the matter before them, they explicitly or implicitly climb the ladder of abstraction in order to evaluate how the case they decide can fit into their larger understanding of the legal, political, and moral world.²⁰ Even if observers disagree, then, at least the theory is transparent and future decisions can be expected to fit within that understanding of the world.²¹

Richard Posner takes great exception to Dworkin's approach, and the debate that rages between Dworkin and Posner can be equally entertaining and weighty.²² While Dworkin urges that the role of moral philosophy is not only desirable but unavoidable,²³ Judge Posner argues for pragmatic, empirically grounded decisions based on the best outcomes as determined by the evidence.²⁴ When judges confront difficult cases and must consider whether to apply a scientific or philosophic methodology, Posner firmly urges for the scientific approach.²⁵

Posner's pragmatism looks to past decisions-the deference to precedent-as one of a number of equally weighed considerations to be made when determining the outcome of a case.²⁶ "Judges often must choose between rendering substantive justice in the case at hand and maintaining the law's certainty and predictability."²⁷ Here, Posner points out that this trade-off is most starkly evident in cases where the statute of limitation is asserted as a defense.²⁸ In these instances, judges will typically rule in favor of the defendant regardless of the so-called merits of the case in order to protect law's certainty and predictability.²⁹ For the purposes of this Article, when judges consider how to reach the "best" outcome of a case, Posner argues that the law's certainty and predictabilityPage 572 should be, and are, valued commodities.³⁰

Cass Sunstein suggests that judicial minimalism, or "saying no more than necessary to justify an outcome," is the preferred approach.³¹ Sunstein argues that minimalism will allow judicial decision-making to be less burdensome, both because the justices will be able to agree on narrow grounds when they might otherwise disagree on broader grounds and because minimalist decisions are less prone to error.³² Moreover...