Federalism and the Supreme Court.

• Author: Savage, David G.

When it comes to the Supreme Court, it's hard to tell how they'll decide issues concerning states.

In each annual term of the U.S. Supreme Court, the states win some big cases and lose a few, as well. But in recent years, some states have been winning regularly, while others have been on the losing end just as often.

Consider a tale of two states: Alabama and Massachusetts.

Alabama emerged as the winner in two of the just-completed term's major rulings. The first shielded states from being sued by their employees with disabilities (Alabama vs. Garrett), while the second bars civil rights lawsuits that allege the states are enforcing policies that have a "discriminatory effect" on racial minorities. Both were decided by the same 5-4 vote of the high court, with chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas siding with Alabama.

Meanwhile, Massachusetts was rebuffed in its effort to ban the advertising of cigarettes within 1,000 feet of schools and playgrounds. Its lawyers had argued that the states have broad power to protect the health of their citizens, especially children, from known dangers. They also noted that selling cigarettes to minors is illegal in every state, so Massachusetts authorities said they should be able to shield children from the lure of cigarette ads.

But the Supreme Court disagreed in another 5-4 ruling, and said the states have almost no authority to restrict the advertising and promotion of cigarettes, cigars or smokeless tobacco. The cigarette makers have a free speech right to advertise their products, the Court said, a decision that could also doom efforts to limit billboard advertising of beer, liquor or gambling. And beyond that, the federal law that sets the warning labels on cigarette packs "precludes states or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes," wrote Justice O'Connor. The five justices who sided with Alabama in the discrimination cases ruled against Massachusetts in the cigarette advertising case (Lorillard Tobacco Co. vs. Reilly, attorney general of Massachusetts).

A year ago, Massachusetts suffered a similar rebuff after its legislature voted to boycott companies that did business with the repressive military regime in Burma (Myanmar). These companies could continue to do business in the Bay State, but state agencies were barred from buying products or services from them. These corporate boycotts were widely used during the 1980s as a successful means to pressure South Africa to end its apartheid policies. In the 1990s, cities such as New York, Los Angeles and Philadelphia adopted similar ordinances targeted at Burma. But the Supreme Court struck down the Massachusetts "Burma law" on the grounds that it infringed on the federal govern. ment's power to control international trade (Crosby vs. National Foreign Trade Council).

California, like Massachusetts, had adopted a law restricting tobacco advertising, but it too has had a losing record of late in the Supreme Court. Its voters adopted a state law that allows people who are seriously ill to obtain marijuana to ease their pain or nausea. Seven states, most of them in the West, have similar measures. But the Supreme Court sided with federal regulators and ruled the federal law allows no exceptions for the medical use of marijuana...