Hearing the States

Abstract

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a bias toward federal power is hard-wired into the modern judicial appointment process. Once on the bench, Justices see an increasingly elite bar of Washington D.C. specialists steeped in federal practice, even when hearing cases concerning state sovereignty. These are problems for the Court, despite its likely sympathy for federalism arguments in years to come. This article suggests one solution: help the Court hear the states. Relatively minor reforms to the Court’s approach in cases impacting state sovereignty could harness the politics of state attorneys general to help the Court hear all states more clearly, facilitate a more principled federalism, and depoliticize the Court itself. States cannot help protect the Court from politicization, however, if their attorneys general fall victim to the same national polarizing forces that threaten the Court. Any reforms to help the Court hear the states better, therefore, must also help the states keep their voices strong and independent.