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The First Monday in October, 2003:
Reflections on the Beginning of a New Supreme Court Term, And A Federalism More Moderate than Many Claim

Thursday, Oct. 09, 2003

This week, the first Monday in October, as per usual - the Supreme Court opened its Term. And this Tuesday, October 7, the Court heard its first oral argument, in two cases.

Neither was terribly sexy, but both are further evidence that the Supreme Court's much-remarked return to federalism is a return to moderation, not the advent of archconservatism.

In both cases, a state asserted its sovereign power, but in neither case did the Justices appear inclined to follow the reasoning of sovereignty. So much for the claim - constantly repeated by the press - that the Court is a knee-jerk adherent to any assertion of "states' rights."

The First Argument: Sovereign Immunity

The first argument, in Frew v. Hawkins, involved the question of whether a state could assert its sovereign immunity to refuse to honor a consent decree to which state officers earlier had consented.

The plaintiffs had sued Texas to require it to comply with the Medicare Act. They entered into a pre-trial settlement agreement. The agreement required Texas to comply with the letter of the federal law, and then go even further. Authorized representatives of both Texas and the plaintiffs signed the agreement.

Now, however, Texas challenges the agreement it signed. It claims the Eleventh Amendment allows it to avoid compliance with the consent decree. (It also claims that it had been complying with the Medicare Act all along, so there was no real need for the decree in the first place.)

Under rigid application of a strict theory of sovereignty, Texas might be right in its view that sovereignty can never be overcome, even by agreement. By tradition, sovereigns who are bound are always bound by their own grace, and thus can withdraw that grace later, if they so choose.

Texas was also able to find some support, in the Court's recent federalism decisions, for this rigid view - though to do so, it had to take their decisions to their extreme. The Justices, though, were having none of Texas's strict theory of sovereignty.

The questioning at oral argument suggested, instead, that the Justices were not inclined to let Texas out of its agreement. Pragmatism drove the questions, and pragmatism seemed likely to prevail. As the Justices pointed out, the state had entered into a contract, presumably because it feared a trial, and gotten a benefit: It had avoided trial. Now, it was trying to avoid the cost that came with the benefit: enforcement of the agreement. Common sense, as much as anything, yields the right decision in the case, and the Court exhibited no allegiance to a notion of sovereignty that would trump such common sense.

The Second Argument: Original Jurisdiction

The second oral argument the Justices heard was in the case of Virginia v. Maryland. Because the parties were States, the case fell within the Court's original jurisdiction - that is, it was among those cases that Article III of the Constitution stipulates that the Supreme Court always must hear, whether Congress likes it or not.

This particular dispute raises the question whether Virginia has the right to build a pipe that takes water out of the Potomac River, even though Maryland owns the river. Among the papers the Court had before it was a report of a Special Master - that is, a court appointee deputized with making fact findings in a case before the Court - finding that Virginia does have that right. Maryland, however, objected to the Special Master's finding, and asked the Court to find in its favor, instead.

The strong reading of state sovereignty would simply said: The river belongs to Maryland and so does the water. Virginia has no right to take it. Case closed.

However, the Court did not seem inclined to adopt Maryland's objection. Rather than simply endorsing a kneejerk application of sovereignty, it looked carefully at all the relevant materials: the compacts and agreements that had been reached between the two states over more than a century, and the Court's previous rulings in original jurisdiction cases.

Thus, rather than invoking broad sovereignty principles during oral argument, the Court focused on a narrow question. The question was, What is the definition of "riparian right" when the rights owner is a state? Based on the argument, it did not seem likely that the Court would adopt a definition that would favor Maryland, and refuse Virginia the right to take Potomac water.

Cases Like These Should Prove the Court Is Not Archconservative on Federalism

Of course, predicting Court results, especially in cases as technical as these, is always a risky venture. But whatever results the Court ultimately reaches in these two cases, it was plain from the oral arguments that its deliberations are nuanced, and attuned to the relevant law and precedents - not simply to some abstract idea of state sovereignty.

But you would not know that from the press - which continues to grievously mischaracterize the Court. For instance, The New York Times greeted the opening of the new Term with a now-familiar but fundamentally misleading characterization of the Court's federalism cases as extreme, and anti-civil rights.

That won't be true this Term, and it wasn't true last Term. Last Term, the Court repeatedly refused to use federalism as a trump card in many cases, including Jinks v. Richland County and Nevada Dept of Human Resources v. Hibbs. In Hibbs, the Court found that despite claims of Eleventh Amendment State sovereignty, Congress did have the power to enact the Family and Medical Leave Act.

Hibbs surprised the press, but it didn't surprise close Court watchers like myself, who have known for a long time that the Court's federalism is moderate. The Court believes in states' rights as an inherent element of the Constitution, not as a trump card in every exercise of federal power.

Meanwhile, the anti-civil rights charge is as misplaced as the "States' rights zealots" charge. The New York Times must already be forgetting the end of last Term - when the Court did not eliminate affirmative action, and identified a right of privacy for homosexuals.

At the time, the reaction in the press was one of shock. For many, it was as though the Warren Court had returned and taken over the Rehnquist Court. By now, though, the Times and others should have adjusted to the truth: This Court is more moderate than it has been portrayed; it is not anti-civil rights; and it does not apply the Eleventh Amendment, or defer to states' rights' claims, in a knee jerk, unthinking fashion - quite the contrary, in fact.

It's time for the press to abandon its ideologically-driven caricatures of the Court. This is a Court that has refused to let itself be pigeonholed as either conservative or liberal. Along the way, it's made those at both political extremes very unhappy - and that's a sign, in my book, that the Court is not beholden to either one. Indeed, all evidence indicates that this Court is determined to do what it believes is right, regardless of political and public consequences.

The media has also claimed - for example, when Bush v. Gore was issued - that this Court is politically partisan. That kind of sensationalism may sell papers, but it's not accurate and misleads the public. There is a bedrock pragmatism in the Rehnquist Court's approach, a fundamental sense of justice and the kind of wisdom that takes all factors into consideration - not just the hardline factors prescribed by any one ideological perspective.

For those who are avid Court-watchers, this is one of the most interesting Courts in history. Even on a day of cases that, with other Justices on the bench, might have been boring, this Court's Justices proved themselves to be both interesting, extraordinarily engaged, and fundamentally level-headed. That is exactly what, as a nation, we should hope that they will be.

Marci A. Hamilton is the Paul R.Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on constitutional topics appears on this website. Her email address is

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