The consistency of the U.S. Supreme Court's "pro-state" bloc

Publius: The Journal of Federalism

Volumn 28, Issue 2, 1998, Pages 25-42

  Swinford, Bill ^a   Waltenburg, Eric N ^a  

^a NONE

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EID: 0039449597     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a029967     Document Type: Article

References (110)

1. 138 L. Ed. 2d 914 (1997).
2. 514 U.S. 549 (1995).
3. 116 S. Ct. 1114 (1996).
4. For example, consider the written opinions in United States v. Lopez. Rehnquist, for the majority, views this case as very much about the balance of authority between the national government and the states. On the other hand, Souter - out of conviction or perhaps convenience - suggests in dissent that in the realm of congressional authority under the commerce clause, judicial deference to the legislative branch, and not state autonomy, is dispositive.
5. Douglas Ross, "Safeguarding Our Federalism: Lessons for the States from the Supreme Court," Public Administration Review 45 (November 1985): 724.
6. Borrowed from O'Connor's dissenting opinion in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 580 (1985).
7. See Eric N. Waltenburg and Bill Swinford, "Do More Friends Mean More Wins? Republican Justices and the Interests of State Governments Since 1968," (paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL, 1997).
8. See, for example, Rehnquist's majority opinions in National League of Cities v. Usery, 426 U.S. 833 (1976); United States v. Lopez, 115 S. Ct. 1624 (1995); his dissenting opinions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 579 (1985); West Lynn Creamery v. Healy, 114 S. Ct. 2205, 2221 (1994). See also, for example, O'Connor's majority opinions in Gregory v. Ashcroft, 501 U.S. 452 (1991); New York v. U.S., 505 U.S. 144 (1992); and her dissenting opinion in Garcia, 469 U.S. 528, 580 (1985). See also Sandra Day O'Connor, "Testing Government Action: the Promise of Federalism," ed. Stephen E. Gottlieb, Public Values in Constitutional Law (Ann Arbor: University of Michigan Press, 1994) and R. W. Van Sickel, "Justice Sandra Day O'Connor and the American Federal System: Jurisprudential Inconsistency in the Service of a States' Rights Political Agenda," (paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL, 1997).
9. See, for example, Rehnquist's majority opinions in National League of Cities v. Usery, 426 U.S. 833 (1976); United States v. Lopez, 115 S. Ct. 1624 (1995); his dissenting opinions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 579 (1985); West Lynn Creamery v. Healy, 114 S. Ct. 2205, 2221 (1994). See also, for example, O'Connor's majority opinions in Gregory v. Ashcroft, 501 U.S. 452 (1991); New York v. U.S., 505 U.S. 144 (1992); and her dissenting opinion in Garcia, 469 U.S. 528, 580 (1985). See also Sandra Day O'Connor, "Testing Government Action: the Promise of Federalism," ed. Stephen E. Gottlieb, Public Values in Constitutional Law (Ann Arbor: University of Michigan Press, 1994) and R. W. Van Sickel, "Justice Sandra Day O'Connor and the American Federal System: Jurisprudential Inconsistency in the Service of a States' Rights Political Agenda," (paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL, 1997).
10. Richard C. Kearney and Reginald S. Sheehan, "Supreme Court Decision-Making: The Impact of Court Composition on State and Local Government Litigation," Journal of Politics 54 (November 1992): 1008-1025.
11. Bill Swinford and Eric N. Waltenburg, "An Action-Reaction Model of U.S. Supreme Court Decision-Making; The Case of the States," (paper presented at the annual meeting of the American Political Science Association, San Francisco, CA, 1996).
12. See Charles Rothfield, "Federalism in a Conservative Supreme Court," Publius: The Journal of Federalism 22 (Summer 1992): 21-31.
13. Richard G. Wilkins et al., "Supreme Court Voting Behavior: 1995 Term," Hastings Law Quarterly 24 (Fall 1996): 60.
14. This study began with the 1994 term because it coincides with the beginning of the current "natural" Court.
15. This seems somewhat akin to the approach taken by Rothfield, "Federalism in a Conservative Supreme Court."
16. The recent U.S. Supreme Court decisions in Washington v. Glucksberg, 117 S. Ct. 2258 (1997) and Vacco v. Quill, 117 S. Ct. 2293 (1993) exemplify this difficulty. In these companion cases, the Court ruled that the states may prohibit assisted suicide, finding no right to such procedures in the Constitution. It is reasonable to argue that the Court was considering government power in general, and not the authority of the states in particular. Presumably, the Court would have reacted in a similar fashion in the hypothetical instance in which the federal government sought to regulate the practice - though, of course, this is an area heretofore traditionally left to the states. Exclusion of these and other civil liberties cases should not be taken as an assertion that individual rights cases have little impact on state government authority. Quite the contrary, such cases can have a profound influence on how states pursue and process criminal convictions and regulate individual expression. For example. Court decisions in cases involving criminal law and procedure can have an enormous impact on state action, particularly given that 90 percent of criminal cases are state cases. Some recent examples include Arizona v. Evans, 514 U.S. 1 (1995) (evidence may be used in criminal trials even when it is obtained on the basis of an erroneous warrant); Wilson v. Arkansas, 514 U.S. 927 (1995) ("knock and announce" procedures are not necessary if police fear physical violence or the destruction of evidence); Bennis v. Michigan, 116 S. Ct. 994 (1996) (property involved in criminal activity can be seized even if the owner was unaware of such use); Wren v. United States, 116 S. Ct. 1769 (1996) (police can temporarily detain a motorist for a traffic violation even if the police are primarily interested in the possibility of some other violation of the law); and Maryland v. Wilson, 117 S. Ct. 882 (1997) (in the course of a lawful vehicular stop, a police officer can order the passengers to get out of the vehicle). In addition, Court holdings related to the First Amendment such as McIntyre v. Ohio Elections Communication, 514 U.S. 334 (1995) (a state may not prohibit the circulation of anonymous campaign literature); Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct. 2440 (1995) (a private group can use public property for religious displays if the property has traditionally been used as a "public forum"); Rosenberg v. Rector and Visitors of University of Virginia, 115 S. Ct. 2510 (1995) (public universities may not deny funding to religious publications solely on the basis of religious content); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (a state may not prohibit the advertising of retail liquor prices); City of Boerne v. Flores, 117 S. Ct. 2157 (1997) (Congress exceeded its authority in passing the Religious Freedom Restoration Act) are important to state legislation and regulation. Finally, a Court decision upholding the authority of a state to suspend a tenured public employee without prior notice or hearing (Gilbert v. Homar, 117 S. Ct. 1807), while not exclusive to the power of state government, is of obvious import to states as employers.
17. See, for example, National Private Truck Council, Inc. v. Oklahoma Tax Commission, 115 S. Ct. 2351 (1995) (federal courts do not have the authority to issue injunctions in state tax cases where administrative remedy is available); Missouri v. Jenkins, 115 S. Ct. 2028 (1995) (federal courts may not order states to increase salaries for primary and secondary education instructional staff or continue to fund remedial education programs in an effort to combat de facto segregation); Arkansas v. Farm Credit Services of Central Arkansas, 117 S. Ct. 1776 (1997) (Production Credit Associations - which are federally chartered entities - may not sue for injunctive relief from state taxation in federal court unless the United States joins as a co-plaintiff); Abrams v. Johnson, 117 S. Ct. 1925 (1997) (a federal court did not violate the Voting Rights Act in constructing an apportionment plan in the absence of state action). These cases clearly implicate issues of state sovereignty, but are beyond the scope of this analysis.
18. See David M. O'Brien, Constitutional Law and Politics (New York: W.W. Norton, 1997), p. 641. Here, O'Brien paraphrases dissenting opinions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
19. The appointment of Chief Justice Burger in 1969 began a string of nine straight Republican appointments to the Court by Presidents Nixon, Ford, Reagan, and Bush. President Carter (1977-1980) made no appointments.
20. See, for example, Lawrence Baum, "Measuring Policy Change in the U.S. Supreme Court," American Political Science Review (September 1988): 905-912; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
21. See, for example, Lawrence Baum, "Measuring Policy Change in the U.S. Supreme Court," American Political Science Review (September 1988): 905-912; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
22. See, for example, John F. Decker, Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era (New York: Garland Publishing, 1992).
23. See Kearney and Sheehan, "Supreme Court Decision-Making." See also Lee Epstein and Karen O'Connor, "States and the U.S. Supreme Court: An Examination of Litigation Outcomes," Social Science Quarterly 69 (1988): 660-674; Swinford and Waltenburg, "An Action-Reaction Model of U.S. Supreme Court Decision-Making."
24. See Kearney and Sheehan, "Supreme Court Decision-Making." See also Lee Epstein and Karen O'Connor, "States and the U.S. Supreme Court: An Examination of Litigation Outcomes," Social Science Quarterly 69 (1988): 660-674; Swinford and Waltenburg, "An Action-Reaction Model of U.S. Supreme Court Decision-Making."
25. See Kearney and Sheehan, "Supreme Court Decision-Making." See also Lee Epstein and Karen O'Connor, "States and the U.S. Supreme Court: An Examination of Litigation Outcomes," Social Science Quarterly 69 (1988): 660-674; Swinford and Waltenburg, "An Action-Reaction Model of U.S. Supreme Court Decision-Making."
26. 469 U.S. 528 (1985).
27. 426 U.S. 833 (1976). There, the Court used the Tenth Amendment to strike down a similar expansion of the FLSA to cover the employees of state governments and their political subdivisions. See also, John Kincaid, "Constitutional Federalism: Labor's Role in Displacing Places to Benefit Persons," PS: Political Science and Politics 26 (June 1993): 172-177.
28. 469 U.S. 528, 580 (1985).
29. Justices William Brennan, Byron White, Thurgood Marshall, Harry Blackmun, and John Paul Stevens.
30. 501 U.S. 452 (1991). At issue was a provision of the Missouri Constitution that required state judges to retire at age 70. The law was challenged as a violation of the federal Age Discrimination in Employment Act (ADEA). The dispute centered on whether the ADEA's "exclusion clause" - which excluded from ADEA's mandates "all elected and most high-ranking officials" - applied to state judges. The majority opinion included a long, impassioned defense of the autonomous nature of the states in the federal relationship, 501 U.S. 542, 457-464.
31. 504 U.S. 144. At issue was the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act was designed to provide incentives for state governments to comply with their obligation under the Low-Level Radioactive Waste Policy Act of 1980 to dispose of such waste generated within their borders by 1992. Among other things, the legislation provided a "take-title provision" which required states that did not provide sufficient disposal sites to take title of and assume liability for all undisposed waste produced by private entities.
32. Heretofore the Court had been reluctant to override coercive policies passed by the Congress. See Michael C. Tolley and Bruce A. Wallin, "Coercive Federalism and the Search for Constitutional Limits," Publius: The Journal of Federalism 25 (Fall 1995): 73-90.
33. But see Shaw v. Reno, 509 U.S. 630 (1994). Voting rights cases will be discussed below.
34. The early 1990s brought the additions of Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. Their views on federal-state relations were unclear at the time of their appointments. But there was little reason to believe that, given their shared moderate approach to the law and records of tremendous fidelity to precedent, they would be candidates to join the Court's pro-state bloc. See Mark Silverstein and William Halton, "You Can't Always Get What You Want: Reflections on the Ginsburg and Breyer Nominations," Journal of Law and Politics 12 (Summer 1996): 459-479.
35. The act made it a federal crime to possess a firearm within 1,000 feet of a school.
36. Carter v. Carter Coal Company, 298 U.S. 238 (1936).
37. The broad implications of Rehnquist's opinion for the Court in Lopezare somewhat elusive. On one hand, the opinion is clear in expressing great disdain for what is perceived to be the federal government's argument that virtually any activity can be connected to interstate commerce, no matter how remotely or indirectly, and thus subject to federal regulation. In addition, Lopez does afford the chief justice the opportunity to establish a "substantial effects" doctrine which requires great judicial scrutiny of the alleged connection that Congress is making between commerce and that which is regulated. It is also worth noting that Lopez perhaps marks a moment when the chief justice and his pro-state colleagues begin to de-emphasize the importance of the Tenth Amendment, relying more heavily instead on a restrictive reading of the federal government's commerce authority.
38. The Brady Act required the U.S. Department of Justice to establish a system capable of providing an instant computerized background check of any individual desiring to purchase a handgun. But in the interim, the act required the "chief law enforcement officer" of each local jurisdiction to perform the checks. This interim provision was challenged as a violation of the U.S. Constitution.
39. 138 L. Ed. 2d 914, 934 (1997).
40. Ibid, quoting Gregory v. Ashcroft, 501 U.S. 452, 457.
41. U.S. Constitution, Amendment XI, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
42. 513 U.S. 30 (1994).
43. U.S. Constitution. Art. I, Sec. 10, "No State Shall, without the Consent of Congress...enter into any Agreement or Compact with another State."
44. 116 S. Ct. 1114 (1996).
45. In doing so, the Court explicitly overturned its 1989 decision in Pennsylvania v. Union Gas Company, 491 U.S. 1 (1989). There, a deeply divided Court found that Congress's power under the commerce clause did allow it to abrogate state sovereign immunity from suit under the Eleventh Amendment.
46. 117 S. Ct. 2028 (1997).
47. 117 S. Ct. 900 (1997).
48. An individual sued the University of California for breach of contract. The work involved was to be performed under the auspices of a contract between the university and the U.S. Department of Energy. Under the terms of the agreement between the university and the department, the federal government agreed to assume legal liability for any suits involving the project.
49. 117 S. Ct. 1335 (1997)
50. At issue was Arizona's alleged failure to comply with the requirements for the pursuit of child-support payments under the Social Security Act.
51. See Peter D. Enrich, "Saving the States From Themselves: Commerce Clause Constraints on State Tax Incentives for Business," Harvard Law Review 110 (December 1996): 377-468.
52. See Gibbons v. Ogden, 9 Wheat. 1, 209 (1824).
53. See Court opinion in Oklahoma Tax Commission v. Jefferson Van Lines, 115 S. Ct. 1331, 1337 (1995), quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977).
54. Considered and rejected by the Court in Foulton Corporation v. Faulkner, 116 S. Ct. 848 (1996).
55. See Court opinion in General Motors Corporation v. Tracy, 117 S. Ct. 811 (1997), and Scalia's dissent in Camps Newfoundland/Owatonna, Inc. v. Town of Harrison, 117 S. Ct. 1590 (1997).
56. See concurrences from Scalia (which Thomas joined) in Oklahoma Tax Commission v. Jefferson Van Lines, 115 S. Ct. 1331, 1346 (1995).
57. See dissent from Thomas in Camps Newfoundland/Owatonna, Inc. v. Town of Harrison, 117 S. Ct. 1590 (1997).
58. 513 U.S. 123 (1994). The Court upheld a Nebraska tax on income from agreements involving federal debt securities.
59. 116 S. Ct. 848 (1996). At issue was a North Carolina's "intangibles tax" on corporate stock. The amount of tax owed was based on the corporation's susceptibility to state taxation: the greater the proportion of the corporation's profits subject to taxation, the lower the stockholder's tax rate.
60. General Motors Corporation v. Tracy, 117 S. Ct. 811 (1997). An Ohio tax was imposed on a natural gas purchase from sellers that did not meet a statutory definition of "natural gas company." The natural gas utilities regulated by Ohio met the definition, while all others did not.
61. 115 S. Ct. 1331 (1995). The Court upheld a state sales tax on interstate bus tickets. Breyer and O'Connor dissented. Notable here is that Scalia (joined by Thomas) concurred in the Court's result, but argued that the propriety of a state tax on a particular function is best left to the determination of Congress. Because the Congress had not acted, the Court should uphold the tax. This concurrence indicates quite well the perils of attributing a pro-state vote to a pro-state mentality. In this instance, the state benefitted from these justices' conservative perceptions of their judicial role.
62. 117 S. Ct. 1590 (1997). The Court struck down a Maine statute that exempted from property taxes charitable institutions that operated primarily for the benefit of residents; charities not incorporated in Maine did not receive an automatic exemption. Kennedy and O'Connor voted along with Stevens, Souter, and Breyer to strike the tax as impairing interstate commerce.
63. 115 S. Ct. 2214 (1995). Ginsburg joined the pro-state bloc, sans O'Connor, in determining that states can enforce an income tax on members of a Native American tribe who do not reside on a reservation, even if they work for a tribal-owned business.
64. Meanwhile, Ginsburg cast three pro-state votes; Souter and Stevens cast one each; and Breyer had no such votes.
65. The other former state government official on the Court, Souter, has proven generally unsympathetic to state interests across the range of issues discussed here.
66. 501 U.S. 452 (1991).
67. 514 U.S. 779 (1995).
68. No person shall be a representative who shall not have attained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of the state in which he shall be chosen," U.S. Constitution, Art. I, Sec. 2, Clause 2. U.S. Constitution, Art. I. Sec. 3, Clause 3, "No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen."
69. 117 S. Ct. 1295 (1997).
70. Though primarily fought on Fourth Amendment grounds, attorneys for Georgia argued that Gregory should be controlling, given its endorsement of the principle that states have broad leeway to control qualifications for state office. Ginsburg's majority opinion responded that while a state does have considerable discretion in its treatment of its elected officials, that discretion does not stretch to the violation of constitutional rights guarantees. Only Rehnquist dissented.
71. 117 S. Ct. 1364 (1997).
72. 117 S. Ct. 1228 (1997). Mississippi - subject to the preclearance provisions of the Voting Rights Act - attempted to comply with the National Voter Registration Act of 1993 by proposing a simplified plan for voter registration. The plan was approved by the U.S. Department of Justice. The state did not, however, pass legislation applying the new procedures to state elections and thus operated a bifurcated registration system, one for state and local elections and one for federal elections. The Court unanimously ruled that Mississippi must have that specific method precleared and that it had not done so.
73. 117 S. Ct. 1491 (1997). The Court held that for the federal government to refuse to approve changes in voting procedures, there must be a showing that such procedures negatively affect African Americans. Stevens and Souter dissented.
74. 115 S. Ct. 2475 (1995).
75. 116 S. Ct. 1894 (1996).
76. 116 S. Ct. 1941 (1996).
77. See, for example. Miller v. Johnson, 115 S. Ct. 2475, 2488 (199-), and Shaw v. Hunt, 116 S. Ct. 1894 (1994).
78. Alternatively, preemption cases are arguably the most complex among the cases examined here, thus offering the justices a relatively obstructed view of the issue of federalism.
79. See David M. O'Brien, "The Rehnquist Court and Federal Preemption: In Search of a Theory," Publius: The Journal of Federalism 23 (Fall 1993): 15-31.
80. The ensuing analysis should not be interpreted as a direct comparison with O'Brien, "The Rehnquist Court and Federal Preemption." Method of case selection is different.
81. Anderson v. Edwards, 514 U.S. 143 (1995); Freightliner Corporation v. Myrick, 514 U.S. 280 (1995); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Company, 514 U.S. 645 (1995); Yamaha Motor Corporation v. Calhoun, 116 S. Ct. 619 (1996); Atherton v. Federal Deposit Insurance Corporation, 117 S. Ct. 666 (1997); California Division of Labor Standards Enforcement v. Dillingkam Construction, 117 S. Ct. 832 (1997).
82. 116 S. Ct. 1103 (1996).
83. 116 S. Ct. 1847 (1996). The actual vote here was 7-2 in favor of upholding a New York statute that imposed a tax on medical centers funded by the federal Employee Retirement Income Security Act (ERISA). Scalia and Thomas dissented, but did so asserting that the federal courts lacked jurisdiction to decide the case. Their view is relatively more pro-state, given that a ruling that federal courts lack jurisdiction removes even the possibility of judicial declarations of preemption. Again, the states benefit from conservative views of the role of the federal judiciary.
84. 116 S. Ct. 2240 (1996).
85. 513 U.S. 219 (1995).
86. Scalia did not take part.
87. 513 U.S. 265 (1995).
88. 514 U.S. 52 (1995).
89. 116 S. Ct. 1652 (1996).
90. The Court was unanimous in upholding state law against an ERISA-based challenge in California Division of Labor Standards Enforcement v. Dillingham Construction, 117 S. Ct. 832 (1997).
91. 117 S. Ct. 1754 (1997).
92. Votes classified as "pro-state": partial dissent in Medtronic, Inc., 116 S. Ct. 2240 (1996); dissenting opinion in Allied-Bruce Terminix Companies, 513 U.S. 265 (1995); dissenting opinion in Mastrobuono, 514 U.S. 52 (1995); dissenting opinion in Doctor's Associates, Inc., 116 S. Ct. 1652 (1997); dissenting opinion of Breyer and O'Connor in Boggs, 117 S. Ct. 1754 (1997). American Airlines v. Wolens, 513 U.S. 219 (1995) is not included here because Scalia did not take part.
93. Lopez, 514 U.S. 549 (1995); Printz, 138 L. Ed. 2d 914 (1997); Seminole Tribe, 116 S. Ct. 1114 (1996); Coeur d'Alene Tribe, 117 S. Ct. 2028 (1997); Regents of the University of California, 117 S. Ct. 900 (1997); Blessing, 117 S.Ct. 1335 (1997); Nebraska Department of Revenue, 513 U.S. 123 (1994); General Motors Corporation, 117 S. Ct. 811 (1997); Jefferson Van Lines, 115 S. Ct. 1331 (1995); Chicksaw Nation, 115 S. Ct. 2214 (1995); Timmons, 117 S. Ct. 1364 (1997); Reno, 117 S. Ct. 1491 (1997); Miller, 115 S. Ct. 2475 (1995); Shaw, 116 S. Ct. 1894 (1996); Bush, 116 S. Ct. 1941 (1996); Anderson, 514 U.S. 143 (1995); Freightliner Corporation, 514 U.S. 280 (1995); New York State Blue Cross & Blue Shield, 514 U.S. 645 (1995); Yamaha Motor Corporation, 116 S. Ct. 619 (1996); Atherton, 117 S. Ct. 666 (1997); California Division of Labor Standards Enforcement, 117 S. Ct. 832 (1997); De Buono, 116 S. Ct. 1847 (1996).
94. See Epstein and O'Connor, "States and the U.S. Supreme Court"; Kearney and Sheehan, "Supreme Court Decision-Making"; Swinford and Waltenburg, "An Action-Reaction Model of U.S. Supreme Court Decision-Making."
95. U.S. Constitution, Art. VI, Clause 2, "This Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land."
96. Medtronic, 116 S. Ct. 2240 (1996), is not included, given that both sides in the case sought review. Hess, 513 U.S. 30 (1994), is not included because the Court consolidated that case with Feeney v. Port Authority Trans-Hudson Corporation, 873 F. 2d 628 (1993), wherein the U.S. Court of Appeals for the Second Circuit reached a conclusion different from the Third Circuit's conclusion in Hess.
97. Printz, 138 L. Ed. 2d 914 (1997); Coeur d'Alene, 117 S. Ct. 2028 (1997); Regents of the University of California, 117 S. Ct. 900 (1997); Blessing, 117 S. Ct. 1335 (1997); Jefferson Van Lines, 115 S. Ct. 1331 (1995); Nebraska Department of Revenue, 513 U.S. 123 (1994); Chicksaw Nation, 115 S. Ct. 2214 (1995); U.S. Term Limits, 514 U.S. 779 (1995); Timmons, 117 S.Ct. 1364(1997); Anderson, 514 U.S. 143 (1995); New York State Blue Cross & Blue Shield, 514 U.S. 645 (1995); California Division of Labor Standards Enforcement, 117 S. Ct. 832 (1997); De Buono, 116 S. Ct. 1847 (1996); Mastrobuono, 514 U.S. 52 (1995). We also include Shaw, 116 S. Ct. 1894 (1996) because as discussed above, even though the state government is the appellee, it is reasonable to suggest that the position that state governments argued on behalf of in the reapportionment cases is in reality counter to their long-term interests.
98. See statistical tables, "The Supreme Court: 1994 Term," Harvard Law Review 109 (November 1995): 349.
99. See statistical tables, "The Supreme Court: 1995 Term," Harvard Law Review 110 (November 1996): 372.
100. Lopez, 514 U.S. 549 (1995); Seminole Tribe, 116 S. Ct. 1114 (1996); General Motors Corporation, 117 S. Ct. 811 (1997); Camps Newfound/Owatonna, 117 S. Ct. 1590 (1997); Fulton Corporation, 116 S. Ct. 848 (1996); Chandler, 117 S. Ct. 1295 (1997); Young, 117 S. Ct. 1228 (1997); Reno, 117 S. Ct. 1491 (1997); Miller, 115 S. Ct. 2475 (1995); Bush, 116 S. Ct. (1941); Freightliner Corporation, 514 U.S. 280 (1995); Yamaha Motor Corporation, 116 S. Ct. (1996); Atherton, 117 S. Ct. 666 (1997); Barnett Bank, 116 S. Ct. 1103 (1996); Allied-Bruce Terminix Companies, 513 U.S. 265 (1995); Doctor's Associates, 116 S. Ct. 1652 (1996); American Airlines, 513 U.S. 219 (1995); and Boggs, 117 S. Ct. 1754 (1997).
101. Camps Newfound/Owatonna, 117 S. Ct. 1590 (1997); Fulton Corporation, 116 S. Ct. 848 (1996); Chandler. 117 S.Ct. 1295 (1997); Young, 117 S.Ct. 1228 (1997); Barnett Bank, 116 S. Ct. 1103 (1996); Allied-Bruce Terminix Companies, 513 U.S. 265 (1995); Doctor's Associates, 116 S. Ct. 1652 (1996); American Airlines, 513 U.S. 219 (1995); Boggs, 117 S. Ct. 1754 (1997).
102. For the purposes of this portion of the discussion, American Airlines, 513 U.S. 219 (1995) is excluded because Scalia did not take part.
103. Pro-state votes were cast via the majority opinion in Lopez, 514 U.S. 549 (1995); majority opinion in Printz, 138 L. Ed. 2d 914 (1997); dissenting opinions in Hess, 513 U.S. 30 (1994); majority opinion in Seminole Tribe, 116 S. Ct. 1114 (1996); majority opinion in Coeur d'Alene Tribe, 117 S. Ct. 2028 (1997); majority opinion in Regents of the University of California, 117 S. Ct. 900 (1997); majority opinion in Blessing, 117 S. Ct. 1335 (1997); majority and Scalia concurring opinion Jefferson Van Lines, 115 S. Ct. 1331 (1995); majority opinion in General Motors Corporation, 117 S. Ct. 811 (1997); dissenting opinions in Camps Newfound/ Owatonna, 117 S. Ct. 1590 (1997); majority opinion in Nebraska Department of Revenue, 513 U.S. 123 (1994); majority opinion in Chicksaw Nation, 115 S. Ct. 2214 (1995); dissenting opinions in United States Term Limits, 514 U.S. 779 (1995); dissenting opinion in Chandler, 117 S. Ct. 1295 (1997); majority opinion in Timmons, 117 S. Ct. 1364 (1997); majority and concurring opinions in Reno, 117 S. Ct. 1491 (1997); majority opinion in Miller, 115 S. Ct. 2475 (1995); majority opinion in Shaw, 116 S. Ct. 1894 (1996); majority and concurring opinions in Bush, 116 S. Ct. 1941 (1996); majority opinion in Anderson, 514 U.S. 143 (1995); majority opinion in Freightliner Corporation, 514 U.S. 280 (1995); majority opinion in New York State Blue Cross & Blue Shield, 514 U.S. 645 (1995); majority opinion in Yamaha Motor Corporation, 116 S. Ct. 619 (1996); majority opinion in Atherton, 117 S. Ct. 666 (1997); majority opinion in California Division of Labor Standards Enforcement, 117 S. Ct. 832 (1997); partial dissent in Medtronic, 116 S. Ct. 2240 (1996); majority and dissenting opinions in De Buono, 116 S. Ct. 1847 (1996); dissenting opinions in Allied-Bruce, 513 U.S. 265 (1995); dissenting opinion in Mastrobuono, 514 U.S. 52 (1995); dissenting opinion in Doctor's Associates, 116 S. Ct. 1652 (1996); dissenting opinion of Breyer and O'Connor in Boggs, 117 S. Ct. 1754 (1997). No justice took a pro-state position in Fulton Corporation, 116 S. Ct. 848 (1996) Young, 117 S. Ct. 1228 (1997); Barnett Bank, 116 S. Ct. 1103 (1996).
104. See, for example, Rothfield, "Federalism in a Conservative Supreme Court," 28-29.
105. Indeed, since joining the Court, Souter has moved further away from the conservative wing. See Eric N. Waltenburg and William P. McLauchlan, "The 'Greening' of Justice David Souter," (paper presented at the annual meeting of the American Political Science Association, San Francisco, CA, 1996).
106. The other justices dissented in the non-unanimous decisions discussed here at the following rates: Rehnquist (5 times); O'Connor (6); Scalia (6); Thomas (8); Ginsburg (9); Souter (10); Breyer (10); and Stevens (11).
107. 117 S. Ct. 2157 (1997).
108. 117 S. Ct. 1807 (1997).
109. 117 S. Ct. 1925 (1997).
110. Noted earlier, cases dealing with criminal procedure and/or individual rights can have a profound impact on state government authority. They involve such issues as permissible state actions, budgeting decisions, and the states role as employers.