The U.S. Supreme Court and New Federalism

From the Rehnquist to the Roberts Court

By (author) Christopher P. Banks, John C. Blakeman

Publication date:

24 November 2017

Length of book:

240 pages

Publisher

Rowman & Littlefield Publishers

ISBN-13: 9780810895539

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

1. “A Notably Conservative Court?”
Plan of Book
2. Federalism Politics & Policies: Old, New, and Progressive Trends
Federalism at the Founding
The Evolution of Federalism Jurisprudence
The Founding and Nascent Nationalism
The Civil War, Dual Federalism and the Rise of Economic Nationalism
The Rise of the Democratic Welfare State Through Cooperative Federalism
The Judicial Role in New Federalism Politics
3. The Rehnquist Court, New Federalism, and States’ Rights
The Politics of New Federalism
Rehnquist New Federalism
Revolutionary and Counter-Revolutionary Trends
Dormant Commerce Clause
Process Federalism and Clear Statement Rules
New Federalism and the Constitutional Culture
4. Federalism, Justice Clarence Thomas, and Religious Freedom in the States
The Rehnquist Court and Religious Liberty
Justice Clarence Thomas and Establishment Clause Federalism
Historical Roots and Contemporary Approaches to Establishment Clause Federalism
Assessing Establishment Clause Federalism
The Constituencies of Establishment Clause Federalism
Congress and the Executive
Recent Developments in Federal Law
The Executive Branch
State and Local Governments
Interest Groups
Churches
Public Opinion and American Religious Life
Religious Liberty, Federalism, and the Roberts Court
5. Federalism and Globalization
Federalism, the Constitution, and Foreign Policy Preemption
Structural Shift from Above
Structural Change from Below
The U.S. Supreme Court Response
The Sidelined Court
The Confined Court
Flexible, Pragmatic Foreign Policy Preemption
Divided Court?
Conclusion
6. The Roberts Court and New Federalism
Federalism and the New Roberts Court Appointments
New Directions of Federalism in the Roberts Court
Statutory Construction Cases: Preemption
Constitutional Cases: The Eleventh Amendment and Commerce Clause
Conclusion

At a time when some of the most prominent cases on the Supreme Court's docket deal with determining the extent and limits of state and federal authority, whether regarding health care, immigration, or environmental protection, Christopher P. Banks and John C. Blakeman undertake a welcome analysis of the Court's evolving federalism jurisprudence and with particular attention to the Roberts Court.