Mike Ramsey argues that, without structural protections, federalism is unlikely to be an important force and that the Supreme Court cannot be relied upon to generally enforce federalism. I agree. He writes:
The difficulty for federalism is the Constitution's lack of corresponding structural protections for the states. The enumerated powers design and the Tenth Amendment are parchment barriers unless something gives them force beyond their mere writing. That something could be the Supreme Court – but on reflection, institutionally why should we expect the Court to embrace this role? Justices will tend to be nationalists. They are selected by two national institutions, the President and Senate. Their backgrounds are typically nationalist in orientation, because that’s how to get noticed by the President: work in the executive branch or for Congress; work for the lower federal courts. Time spent in state courts or state government (or, worse, time spent articulating pro-federalism attitudes) generally won’t get you nominated, much less confirmed.
Interestingly, the nationalist character of the Supreme Court was recognized in the early 1960s, when various states, which were opposed to the Warren Court, proposed amendments to rectify the perceived imbalance between the federal and state governments. One of the proposals attempted to check the nationalist orientation of the Supreme Court. The proposed amendment "would establish a Court of the Union, composed of the chief justices of each state, with authority to review Supreme Court decisions regarded federal-state relations." See David Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1795, at 372.
Whether or not one finds the proposal attractive generally, it is abn interesting question whether this proposal would have had the desired effect as to federalism. The fact that the Chief Justices would remain as state court judges, even while serving on this Court of the Union, does suggest that they would retain their state orientation.
Posted at 9:00 AM