The Casey Five Versus the Federalism Five: Supreme Legislator or Prudent Umpire?

Abstract

The Rehnquist Court is often attacked as being especially antidemocratic and activist. Although Bush v. Gore added emotion to the charge, the primary evidence for this claim is usually drawn from the Court's federalism decisions, reflecting the Rehnquist Court's unusual willingness to invalidate federal legislation. This chapter argues that the charge of judicial supremacy is misplaced when aimed at the "Federalism Five," however. Such criticism would be more appropriately targeted at the different set of justices who formed the majority in cases such as Casey. The structure of the federalism decisions is such that political power is simply shifted by them from one legislature (Congress) to another (that of the states). By contrast, the structure of individual rights decisions such as Casey is such that political power is removed from the electoral arena entirely and lodged in the judiciary.

Keywords: Casey, abortion, federalism, judicial review, judicial supremacy, judicial activism