August 15, 2006
Experts Are Hopeful The New Supreme Court Will Appreciate Federalism
By Andy Spears
Tennessee Senate Democratic Caucus for NCSL
NASHVILLE – Two expert Supreme Court observers at the National Conference of State Legislatures' 2006 Annual Meeting were cautiously optimistic about the new bench's take on federalism.
Richard Ruda, chief counsel at the James I. Crowley State and Local Legal Center in Washington, D.C. and Suzanna Sherry, who holds the Cal Turner Professorship in Law and Leadership at the Vanderbilt University Law School spoke at the Supreme Court Roundup session.
Ruda said he is encouraged by Chief Justice John Roberts and his decisions and writings from his first full-term on the Court. That is, he believes Roberts will be a solid justice with an appropriate appreciation of the principles of federalism.
Additionally, Ruda pointed to decisions relevant to state reliance on existing state law and indicated that the Court’s decisions will require additional state involvement in legal proceedings in order to satisfy Constitutional protections afforded citizens. Specifically, the Court ruled on cases related to notice requirements and Medicaid and the bottom line in both decisions is that states must be more deeply involved in procedural legal matters in order to ensure that citizens’ rights and interests are appropriately protected.
Sherry provided an overview of key issues dealt with by the Supreme Court. She noted that with regard to bankruptcy, states are no longer immune from being involved in bankruptcy suits. The Court ruled that there is no need for congressional override of immunity because no immunity protection is provided in the U.S. Constitution. This decision represents a major change in state liability and will certainly impact states in future cases.
Sherry identified Justice Kennedy as the key vote on executive power, noting that there appears now to be four justices who support expansive executive power and four who support limiting executive power, with Kennedy holding the balance.
Ultimately, both Sherry and Ruda said that a second term, with both Justice Roberts and Justice Alito fully active in all decisions, will provide more insight into how the Supreme Court might treat federalism issues in the foreseeable future.
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This summary is provided for information purposes only. NCSL does not endorse any views it contains.
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