Monday, December 02, 2002

Huh? Emily Bazelon says that the flurry of state supreme court decisions finding that state constitutions require government funding abortions aren't getting much attention, because conservatives and pro-lifers aren't making a big deal out of them. She then closes with:

There's a nice irony here: Conservatives, who usually argue
for state-based solutions, and liberals, who usually argue for
federal ones, find themselves switching sides. It's an odd swap
of strategy (and principle) that's at least somewhat reminiscent
of the upside-down notions of federalism that pervaded the arguments
in Bush v. Gore. It takes some sleight of hand on the part of conservatives
to go from lauding the states as incubators of democratic innovation to
blasting them for daring to disagree with their federal betters—although
it's no more astonishing than hearing liberals importuning state courts to
save them from the mistakes of the federal Constitution. Maybe consistency
is too much to ask for here. But the lurking question in these abortion cases
is whether, all the yammering about federalism notwithstanding, "states' rights"
is anything more than a label of convenience to be grabbed by whomever the
grabbing is good for.

But she's just finished telling us that, with very few exceptions, conservatives aren't making a big deal out of these cases. And she hasn't quoted any conservatives who are doing anything like complaining that the state judges are "disagreeing with their federal betters." No one, for example, has appealed one of these decisions to the Supreme Court. (There would be no legal grounds to do so; but that's part of the point.) State supreme courts may interpret even state constitutional clauses identical to ones in the federal constitution very differently from how the federal courts interpret the latter, and state constitutions differ from the federal one in all sorts of interesting ways. I'm willing to bet that no legal scholar who has an even remotely federalist bent (i.e. no fair using Hadley Arkes as the counterexample) has disputed any of this, even in the context of decisions he or she thinks were a) wrong as a matter of state law or b) morally repugnant. If I'm right about that, then the quoted paragraph is a cheap shot, and a gratuitous Bush v Gore invocation where it doesn't actually make any sense.

Now some conservatives (who mostly aren't libertarians) have a majoritarian bent, and a preference for judicial minimalism. They're skeptics about amy judiciary overriding any legislature on other-than-very-compelling grounds. And those democratic-conservatives are often federalists because they think that democratic self-government is best served by governments smaller in scale than the central one. Those conservatives can, with perfect consistency, prefer state legislative outcomes to Congressional outcomes, and prefer state legislative outcomes to state judicial outcomes. Seeing the states as "incubators of democratic innovation" is entirely compatible with thinking that state legislatures (the, y'know, democratically elected branch) should have priority over state judiciaries. And so those conservatives who are much exercised by "judicial activism" can critique it at the state as well as the federal level, at no cost to their federalist principles.

(Note: The Rehnquist, Scalia, and Thomas opinion in Bush v Gore-- the one not joined by O'Connor and Kennedy-- depended in large part on an argument related to this, haing to do with the relative priority of the Florida legislature and the Florida Supreme Court. It's the other opinion, the equal protection one that either O'Connor or Kennedy or both wanted instead, that justifies accusations of federalism-hypocrisy.)

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