-Caveat Lector-
"The "sovereign immunity" rulings long had been a goal for Rehnquist,
who in 1975 said states should not be bound by federal wage-and-hour laws.
"When that ruling was overturned in 1985, he wrote he was confident his
view would ``in time again command the support of a majority of this court.''
So, Rehnquist sees a conflict between "states' rights" and "HUMAN
rights" ...
Chief Justice Gets His Way
By LAURIE ASSEO
.c The Associated Press
WASHINGTON (AP) - Chief Justice William H. Rehnquist got what he wanted in a
series of recent Supreme Court rulings on states' rights, but he needed the
swing votes of Justices Sandra Day O'Connor and Anthony M. Kennedy.
``They're the fulcrum. As they go, so goes the court,'' said Yale University
law professor Akhil Reed Amar.
``What they do is call the shots'' year after year by casting the votes that
tip the balance on the nation's highest court, added American University law
professor Mark Hager.
During the recently ended 1998-99 term, Kennedy and O'Connor each voted in
the majority in all but eight of the 75 signed decisions. The other seven
justices dissented from 10 to 19 times each, with Rehnquist voting in dissent
15 times.
When the court voted 5-4, the majority most often included the three most
conservative justices -Rehnquist, Antonin Scalia and Clarence Thomas - plus
O'Connor and Kennedy. But either O'Connor or Kennedy can tip the balance the
other way by joining the four more liberal justices: John Paul Stevens, David
H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
There were 16 cases decided 5-4, and only one of those cases had both
O'Connor and Kennedy in dissent.
The two joined the three conservatives in the most dramatic rulings - a trio
of 5-4 decisions that invoked sovereign immunity to shield states from
lawsuits claiming they violated federal rights such as wage-and-hour laws or
patent protections.
The rulings long had been a goal for Rehnquist, who in 1975 said states
should not be bound by federal wage-and-hour laws. When that ruling was
overturned in 1985, his dissenting opinion said he was confident his view
would ``in time again command the support of a majority of this court.''
The justices did not actually reinstate the 1975 decision, but went a long
way toward it by barring many individual lawsuits against states.
So whose is the dominant voice on the court? Legal experts disagree.
Perhaps O'Connor, says University of Utah law professor Michael McConnell.
She staked out a pro-states' rights view in her second year on the court,
writing in dissent in a 1982 utility case that the majority was letting
Congress ``kidnap state utility commissions into the national regulatory
family.''
``She may be the leader of this movement,'' McConnell said.
But she also took the court in the other direction, joining the liberals in a
5-4 ruling in May that lets students sue schools for failing to stop other
students from sexually harassing them.
Kennedy sharply dissented from that decision, one reason Pepperdine
University law professor Douglas Kmiec said he proved the more intriguing
justice. Another reason: Kennedy wrote the main decision in the states'
rights cases, a ruling Kmiec saw as a shift in direction from the court's
1995 vote to bar states from imposing term limits on members of Congress.
Erwin Chemerinsky, a law professor at the University of Southern California,
said he regards O'Connor and Kennedy as crucial swing votes but added, ``I
also think this is the Rehnquist court.''
Rehnquist someday may best be remembered for the success of his views on
states' rights - ``his most driving ideological goal with regard to
constitutional law,'' Chemerinsky said.
Assessing the justices' recent contributions is like watching a horse race
and trying to figure out which one got its nose in front, suggested
University of Colorado law professor Robert Nagel.
Pepperdine's Kmiec agreed, and said such vying yields ``fairly pragmatic''
results.
``Even when they're not closely balanced in a specific opinion, they tend to
be closely balanced in terms of the overall work of the court,'' he said.
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