- The Washington Times - Wednesday, June 8, 2005


In what may be his last term, Chief Justice William H. Rehnquist’s legacy of limiting the federal government’s reach has been tarnished as the states’ rights coalition he nurtured for more than a decade splinters on some major issues.

The latest example is the Supreme Court decision that a federal marijuana ban trumps state laws legalizing the drug for the seriously ill.

Chief Justice Rehnquist also was on the losing side this year in cases that struck down state laws on wine purchases and that declared it unconstitutional for states to execute juvenile killers.

“In case after case after case in recent years, the strong federalist position doesn’t seem to be winning out,” said Richard Garnett, a former Rehnquist clerk who teaches at Notre Dame Law School.

The chief justice has been the leader of the “federalist five,” the five conservatives who generally support states’ rights and advocate limited federal government interference.

Those five — Chief Justice Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — have voted together to strike down federal laws intended to protect female victims of violent crimes and to keep guns away from schools. Their reasoning is that those issues are better dealt with at the local level.

Justices Scalia and Kennedy parted ways with the five in Monday’s ruling giving federal authorities the power to punish sick people who smoke marijuana to ease pain, even if they live in states with “medical marijuana” laws.

Chief Justice Rehnquist and Justices O’Connor and Thomas warned that the court was inviting Congress to pass intrusive laws.

A ruling for California in the marijuana case would have sealed the chief justice’s states’ rights legacy. But that was not expected, in part because the politics of the medical-marijuana issue made it tougher for the five justices to stay together.

“So far, he has been able to get five votes for very small, more or less symbolic restraints on Congress,” Nelson Lund, a law professor at George Mason University, said of Chief Justice Rehnquist. “It’s what I call fig-leaf federalism.”

Thomas Goldstein, a Washington lawyer who specializes in the Supreme Court, said: “It’s not for lack of leadership. Instead, a majority of the court simply isn’t as conservative yet as the chief justice.”

The four justices who compose the court’s more liberal wing — John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — consistently vote together in cases that test the federal government’s power.

They were united on Monday in another decision that Chief Justice Rehnquist disagreed with, a ruling siding with the federal government in a dispute over ownership of submerged lands in Glacier Bay National Park. Chief Justice Rehnquist and Justices Scalia and Thomas filed a partial dissent supporting Alaska.

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