Jonathan F. Mitchell
Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted primarily in court-created doctrines and precedents rather than constitutional language, and many of these doctrines and precedents could never have obtained the formal supermajoritarian assent needed to entrench a constitutional rule. These judicial interpretive practices are in tension with the Constitution’s efforts to protect federalism and state prerogatives by making it difficult for federal institutions to enact federal laws and impose nationwide policies on the states.
Those who wish to preserve a regime of constitutional federalism should think hard about ways to counteract the Supreme Court’s unilateral nationwide policymaking. This is no easy task because the notion of judicial interpretive supremacy over the Constitution is well entrenched in our legal and political culture, and many of the Supreme Court’s decisions to nationalize policies at the expense of state decisionmaking enjoy substantial political support. This Essay discusses the challenges that confront efforts to protect state prerogatives against the unilateral policymaking of the federal judiciary, and proposes some strategies that advocates of federalism might deploy in their efforts to chip away at the judiciary’s incursions on state authority.