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The U.S. Supreme Court and New Federalism

From the Rehnquist to the Roberts Court

Christopher P. Banks and John C. Blakeman

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. « less more »
Rowman & Littlefield Publishers
Pages: 362Size: 6 3/8 x 9 1/4
978-0-7425-3504-6 • Hardback • July 2012 • $58.00 • (£39.95)
978-1-4422-1858-1 • eBook • July 2012 • $57.99 • (£39.95)
Christopher P. Banks is associate professor of political science at
Kent State University

John C. Blakeman is associate professor and chair of political science at the
University of Wisconsin-Stevens Point
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
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?
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
Over the last two decades, federalism has been one of the most important, and most widely discussed, issues for the US Supreme Court. While this subject has produced many important scholarly articles, this important and valuable volume by Banks (Kent State Univ.) and Blakeman (Univ. of Wisconsin, Stevens Point) is the most comprehensive treatment of the Court's federalism jurisprudence. The authors analyze the historical development of the Court's federalism case law, but they also place these cases in a policy-making context. Tracking how conflict within the Court affects judicial reasoning and outcomes, Banks and Blakeman explore the ramifications for federalism found in a host of areas, including governance, religious freedom, and globalization. Special attention is paid to the different approaches to federalism taken by the Court under William Rehnquist, who kick-started the Court's federalism "revolution," and by his successor as chief justice, John Roberts. The book is especially timely given recent decisions on the Affordable Care Act and Arizona's immigration law, and each of these cases is covered in a brief concluding chapter. Summing Up: Highly recommended. Graduate and research collections.

In The U.S. Supreme Court and New Federalism, Christopher Banks and John Blakeman examine the relationship between the political construction of 'New Federalism' and the U.S. Supreme Court’s federalism jurisprudence. The analysis in the book is both comprehensive and focused: it is comprehensive in the sense that it considers the development of federalism from a broader historical perspective, but it also focuses on key developments in the Supreme Court since the mid-1990s under Chief Justices William Rehnquist and John Roberts. Scholars interested in federalism, the Supreme Court, and constitutional law will find this book a valuable resource on the modern Court’s role in debates over the boundaries between federal and state power. . . .I highly recommend the book for anyone interested in the Supreme Court and federalism, especially in era of the Rehnquist and Roberts Court.
Publius: The Journal of Federalism

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.
John Dinan, Wake Forest University

The U.S. Supreme Court and New Federalism is a comprehensive yet focused examination of federalism in the U.S. Supreme Court. Banks and Blakeman deftly show how the Court's federalism decisions over time have shaped and been shaped by politics. They persuasively argue that while the Roberts Court has remained committed to many of the federalism values of its predecessor the Rehnquist Court, the new composition of the Court and the political environment within which it operates is likely to push the Court in new directions in its federalism jurisprudence. Scholars and others interested in the Supreme Court or constitutional federalism will find this book indispensable.
J. Mitchell Pickerill, Northern Illinois University

Federalism usually only occupies the attention of a handful of constitutional law specialists. However, during the Rehnquist years, and continuing into the Roberts Court, it has been a central feature of Supreme Court jurisprudence. This book is a thorough, careful, and balanced analysis, blending together both legal analysis and political science, of how the Court has handled federalism in those years. It deserves a wide audience.
Jerry Waltman, Baylor University

Christopher Banks and John Blakeman's ambitious book canvasses and synthesizes considerable scholarship surrounding the history of federalism, as well as specific material on the Rehnquist and Roberts Courts... This book contains considerable information and serves as a welcome addition to federalism scholarship.
Perspectives on Politics