<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"> <HTML xmlns:o = "urn:schemas-microsoft-com:office:office"><HEAD> <META http-equiv=Content-Type content="text/html; charset=iso-8859-1"> <META content="MSHTML 6.00.2800.1106" name=GENERATOR> <STYLE></STYLE> </HEAD> <BODY bgColor=#ffffff> <DIV>[A small addition for the Left Barrister's Organization list-- courtesy of me from my day job at the Brennan Center-- NN]</DIV> <DIV> </DIV> <DIV>** From the Brennan Center for Justice at NYU Law  **</DIV> <DIV> It's Not About Federalism #7: </DIV> <DIV>Conservative Justices Expand Federal Power</DIV> <DIV>  <o:p></o:p> * A case on insurance regulation in California involving Holocaust survivors * A case on Internet filters at libraries * Two cases on affirmative action in Michigan * A question of whether arbitrators can decide class action lawsuits in South Carolina.  <o:p></o:p> What do these decisions by the Supreme Court on Monday all have in common?  <o:p></o:p> If Chief Justice Rehnquist had his way, federal power would trump state law in every one.   Rehnquist was joined by Justice Kennedy in each case and by Justice O’Connor in all but the Grutter affirmative action decision.  Justices Scalia and Thomas held slightly truer to their rhetorical vision of states rights, so the focus of the day on variations on states rights was one reason for an unusual deviation from the usual lineups of 5-4 splits.  But monday showcased a nice collection of decisions to illustrate the point that the conservative Justices routinely trump state laws or individual rights with federal power when it suits their broader substantive views.  <o:p></o:p> In the case of affirmative action, this reality of conservative ideology trumping “states rights” has been obvious for decades, as states and local governments have struggled with overcoming centuries of racism in designing affirmative action programs, only to have the Supreme Court repeatedly strike down their efforts with arbitrary and vague principles. (And since Washington v. Davis in 1976, there has been no similar judicial energy to strike down systematic local racism against blacks or other minority groups.)   And yesterday’s split decision has seemingly left states at the mercy of federal judicial whim with a decision that, in the words of Salon writer Joan Walsh, leaves legal affirmative action in the category of pornography—we’ll know it when a federal judge sees it. See <A href="http://www.salon.com/opinion/feature/2003/06/24/affirmative_action/index.html">http://www.salon.com/opinion/feature/2003/06/24/affirmative_action/index.html</A>  <o:p></o:p> In American Insurance Association v. Garamendi, the Court struck down a California state law seeking to protect victims of the Holocaust by forcing insurance companies to disclose their role as a condition of doing business in the state.  Maintaining a “single voice” on foreign affairs is not an unreasonable position, but as the four dissenters noted in this case, the federal government had developed no such unified voice on the subject.  As Justice Ginsberg argued:  <o:p></o:p>  “No executive agreement or other formal expression of foreign policy disapproves state disclosure laws like the HVIRA [the California law in question]. Absent a clear statement aimed at disclosure requirements by the ‘one voice’ to which courts properly defer in matters of foreign affairs, I would leave intact California's enactment.”  <o:p></o:p> Yet despite that absence of formal legal preemption, Rehnquist, Kennedy and O’Connor (here in a decision by Souter and joined by Breyer) voted to gut the California law in the name of federal monopoly power over issues effecting foreign relations in cases where there is even an inkling of differing strategies by federal diplomacy, whether the federal government has sought to bar state actions or not.  De facto, this means that informal negotiations by the executive branch, with no formal law passed, can become an automatic veto on state government action to demand just international actions by multinational corporations.  While few scholars would question the need for the federal government to prevent disruptive state action when needed,  this decision is a dramatic statement of monopoly power in regulating multinational companies by the federal branch, and it is a problematic expansion of Presidential power to veto state action without having to pass either law or clear executive order.   <o:p></o:p> Hostility to trial lawyers and pro-corporate principles trumped states rights in Monday’s Green Tree Financial Corp. v. Bazzle case.  At stake in the controversy was the broad and complex issue of how federal courts should interpret the Federal Arbitration Act as to when arbitration clauses should trump local legal proceedings.  In the case, however, a ruling by the South Carolina Supreme Court and by the arbitrator chosen by both sides had each ruled that additional plaintiffs harmed by Green Tree could be added to the proceedings as a class action.  The odd duo of Justice Stevens and Justice Thomas each took the strongest states rights position that, since the arbitration clause specified that South Carolina law would govern, the US Supreme Court should defer to the South Carolina top court.  The three other liberal Justices, joined by Scalia, felt that a clearer ruling by an arbitrator, rather than the state court, should govern the contract interpretation.  <o:p></o:p> But only Rehnquist, Kennedy and O’Connor declared, in dissent, that they could substitute their judgment for both the state Court and the arbitrator to definitely rule that class actions were disallowed, in complete contravention of South Carolina state law.  This decision, given the silence of the contract on the issue and the clear statement of state law on the matter, is a rather breathtaking assertion of federal power by these conservative Court members.   <o:p></o:p> Finally, there was the case upholding the federal law requiring local libraries to use Internet filtering software, US v. the American Library Association, on pain of being denied federal library funding.  While the First Amendment aspects of the case were front and center, the case also involved the kinds of financial strings used to control local government that states rights conservatives usually deplore.  Yet here, all five conservative Justices (joined by Breyer) upheld the use of federal financial inducements to restrict the provision of information by local government entities.  Although the conservatives maintained that their ruling was based on a desire to allow public libraries themselves the freedom to control their own collections, it was left to a liberal Justice, in this case Justice Stevens, to note what the Court was doing was permitting Congress to require that libraries use filtering software to which the vast majority of libraries object, thus removing the ability of "local decisionmakers to tailor their responses to local problems."  <o:p></o:p> What is striking in these Monday cases (and most cases touching on the state-federal divide of powers) is how consistently inconsistent both conservatives and progressives Justices are in these matters.  On Monday, only Justice Stevens consistently took the side against federal power, yet no one, least of all Justice Stevens himself, would label his philosophy as driven by a states rights vision.    <o:p></o:p> Instead, it’s the core substantive values that divide judges ideologically that seem a far better map to these decisions, not the occasional bits of federalism rhetoric used to dress them.   <H1 style="MARGIN: 0in 0in 0pt">It’s Not About Federalism, It’s about Values and Ideology  </H1> <H1 style="MARGIN: 0in 0in 0pt"> </H1>   TO SUBSCRIBE Send a blank message to: join-federalism@forums.nyu.edu UNSUBSCRIBING: Send a blank message to the list's unsubscribe address: leave-federalism@forums.nyu.edu Nathan Newman Associate Counsel, Poverty Program (212) 992-8638 nathan.newman@nyu.edu Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Floor fax 212-995-4550 www.brennancenter.org<o:p></o:p>  <o:p></o:p> <H1 style="MARGIN: 0in 0in 0pt"> </H1></DIV>--- You are currently subscribed to federalism as: nathan.newman@nyu.edu To unsubscribe send a blank email to leave-federalism-866270O@forums.nyu.edu </BODY></HTML>