And There Will Come a Day

Not having written any sort of tribute (or anti-tribute, as the case may be) for Chief Justice Rehnquist nor Justice O'Connor, I content myself with posting the conclusions of their respective dissents in Garcia v. San Antonio Metropolitan Transit Authority:

But under any one of thse approaches the judgment in these cases should be affirmed, and I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.

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It has been difficult for this Court to craft bright lines defining the scope of the state autonomy protected by National League of Cities. Such difficulty is to be expected whenever constitutional concerns as important as federalism and the effectiveness of the commerce power come into conflict. Regardless of the difficulty, it is and will remain the duty of this Court to reconcile these concerns in the final instance. That the Court suns the task today by appealing to the "essence of federalism" can provide scant comfort to those who believe our federal system requires something more than a unitary, centralized government. I would not shirk the duty acknowledged by National League of Cities and its progeny, and I share Justice Rehnquist's belief that this Court will in time again assume its constitutional responsibility.

Unlike Blackmun's trumpeting in Garcia that "National League of Cities v. Usery is overruled," O'Connor's opinion in New York v. United States dodges precedent by saying "This case presents no occasion to apply or revisit the holdings of any of these cases, as this is not a case in which Congress has subjected a State to the same legislation applicable to private parties."

Though Souter joined that majority opinion, in one of the last cases to mention Garcia, Seminole Tribe v. Florida, he dissents from Rehnquist's majority opinion, and quotes Garcia: "The plain statement rule [...] is particularly appropriate in light of our primary reliance on '[t]he effectiveness of the federal political process in preserving the States' interests.'" Inasmuch as the Rehnquist and O'Connor dissents in Garcia heap scorn on the continued validity of Weschler's theory that the states' participation in the federal electoral process protects them from abuse by the feds, Souter's exact conception of the mechanism to maintain any state sovereignty is difficult to discern.