The gutting of the Violence Against Women Act and now the restriction on the application of the ADA to states leave open the question of whether the Court will now gut lawsuits against local and state governments based on federal civil rights laws.
Beyond that we have seen state government laws such as the Mass anti-Burma law and HMO regulations overturned in the name of federal preemption, showing the dexterity/hypocrisy of the Rehnquist Court's federalism. Similarly, we are increasingly seeing state and local consumer and (with an upcoming case) possibly all employment lawsuits subsumed under employer-run arbitration clauses that prevent suits even getting to court.
And sitting in the wings is the blockbuster weapon- the "taking clause"- which threatens to take out all federal regulation that costs private business any money to comply with. There is probably not a stable majority yet for a full-scale assault on all regulations on that basis, since only four of the justices have ever struck down a regulation as a "regulatory takings" (see Eastern Associates), but we are about one Justice away, say any more conservative replacement for Kennedy or any replacement of one of the four more liberal Justices, to start seeing far more sweeping decisions on that basis.
Or maybe even O'Connor and Kennedy will get there on their own, as long as they can get there slowly step-by-step in the slow boiling of the frog of democratic power and economic justice.
-- Nathan Newman