THIS WEEK, the Supreme Court will decide whether an Ohio program using vouchers at church-related schools violates the First Amendment’s ban on establishing religion. The outcome in Zelman v. Simmons-Harris is hard to predict, not least because the court is narrowly divided on church-state questions. But what isn’t hard to predict is that most, if not all five, of the “conservative” justices will agree with the “conservative” position advanced by the Bush administration–in favor of the Ohio program. The reason such a prediction is easy to make is that the conservative justices already have embraced conservative positions on church and state. The same is likely to occur when two other subjects that sharply divide the court–race and abortion–are brought before it. In such cases, you can anticipate that the Bush administration will advance a “conservative” position and that most of the five conservatives will agree with it. The model breaks down, however, when it comes to federalism, the last of the four big subjects often decided by the vote of single justice. Consider the case handed down last month pitting the South Carolina State Ports Authority against the Federal Maritime Commission. The issue was whether state sovereign immunity barred the commission from deciding a private complaint brought against the ports authority. The court, with the five conservatives constituting the majority, ruled in favor of South Carolina. Interestingly, the court wasn’t told by the Bush administration that it should decide the case the way it did. In fact, the administration argued just the opposite–in favor of the commission. And, lo, the administration’s position was taken by the four dissenters–John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Rarely does the administration strike out entirely with the conservatives and win the votes of only the liberals. But the South Carolina case didn’t produce an odd voting pattern. The court divided exactly as it has in a series of federalism controversies dating back to 1995. Nor was the administration’s position an exception to what it can be expected to advance in federalism cases. Bear in mind that the solicitor general’s office represents a particular government–the federal government. If (in a given case) it can’t defend the government in good conscience, someone else will be assigned the job. Rarely does that happen, however. It didn’t in the South Carolina case, and it is hard to imagine many federalism cases down the road where it might. The irony is that President Bush–upon advice from the Justice Department, whose fourth-ranking officer is the solicitor general–is nominating judges likely to rule against the federal government in federalism cases. That is so in part because lower-court judges are obligated to follow what the Supreme Court says–and it has said much in favor of the states. But it also is true that the administration is looking to appoint judges–and justices–whose approach to federalism is likely to resemble that articulated by the five conservative justices who now control the issue. If you think the administration is of two minds on federalism, think again, for much depends on where one sits. Before he became a justice, Robert Jackson was solicitor general and took positions on executive power that changed once he was asked to decide cases. If the current solicitor general, Theodore Olson, were sitting on the Supreme Court, he probably would join the pro-federalism majority. An additional irony is that President Bush says he wants judges who are “strict constructionists.” But strict constructionism, if by that is meant adherence to the literal text of the Constitution, doesn’t support the decision in the South Carolina case or the previous federalism cases. Nor does constitutional history. More persuasive are arguments grounded in the structure of the Constitution–a point recognized by Justices Antonin Scalia and Clarence Thomas. Whether the president will advance a more sophisticated understanding of his judicial philosophy is doubtful, if only because no president in modern times has. Be that as it may, it is good that federalism has friends in high judicial places. The framers divided government in order to limit government and thus better secure liberty. But the federal government, biased as it is in favor of national power, naturally will tend to erase those divisions–to the detriment of liberty. Difficult questions of interpretation duly noted, only the federal courts are in a position to enforce federalism. Led by the Supreme Court, they are attempting to do just that. Terry Eastland is publisher of The Weekly Standard.
