The Hope for a More Conservative Roberts Court
What I have not seen treated in the commentary is another aspect of federalism that the federalist Five have not done well, namely the preemption of state regulation. The hopeless Four have been far more willing to allow room for state law when Congress doesn't explicitly preempt it. Justice Breyer, for example, noted in a preemption dissent (in which Justice Thomas wrote the majority opinion preempting state marriage law, and Justice Scalia concurred):
[T]the Court has recognized the practical importance of preserving local independence, at retail, i.e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to preserve state autonomy. Indeed, in today's world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress' commerce power at its edges, United States v. Morrison, 529 U.S. 598 (2000), or to protect a State's treasury from a private damages action, Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. ___ (2001), but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 427 (1999) (Breyer, J., concurring in part and dissenting in part).So while the federalist Five have done a great job limiting the reach of some enumerated powers, their preemption cases have let through a lot of federal regulation that they could otherwise have stopped. The preemption creates the structural problem of limiting the influence of the states on their citizens--the very influence that is vital to the political safeguards system of protecting federalism that we have. Madison's writings in the Federalist Papers argue for such a process, rather than substance, based approach to the states (like the political safeguards and Garcia), but he relies on a premise that state citizens will be more loyal to, and more concerned with, the regulation by the states, not the federal government. Such a premise requires that there are at least some, let alone the most important, areas left to the states to regulate. (See Ernest Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349) Garcia precludes the Court from enumerating those areas, but a more strict burden on Congress to preempt would have the practical effect of leaving more to the states.
So the hope, in my mind, is that Chief Justice Roberts and Justice Alito will be as conservative as the outgoing Justices in the ways we think the federalism revival as addressing, but that they will side with the hopeless Four (who are not, it appears, so hopeless) against Scalia, Thomas, and Kennedy (who in this area as any other is a floater (see Medtronic)) in the preemption cases. With any luck (well, a lot of luck), Alito would be on the Court to participate in Gonzalez v. Oregon and we would see how this is going to play out.