CHIEF JUSTICE REHNQUIST’S CANCER TREATMENT provokes some thoughts by Dahlia Lithwick over on Slate. She predicts that the Chief Justice “will hang around as long as he possibly can.” Her theory is that he sees his work as unfinished, in part because the “federalism revolution” that “[h]e framed and launched” has “stalled out in recent years.” Court commentators have put a lot of effort into selling the story that the Court is in the midst of “federalism revolution,” an absurd overstatement, considering the handful of cases that recognize some small measure of judicially enforceable reserved power for the states. If you think Chief Justice Rehnquist is fired up about states’ rights, please tell me why he wrote the majority opinion in Nevada v. Hibbs, making the states suable for violations of the Family and Medical Leave Act. He may have “framed and launched” whatever it is the Court has been doing with federalism over the last three decades – surely not a revolution – but if this federalism you envision as some sort of moving vehicle has “stalled,” the Chief Justice himself seems to have been driving when that happened too.
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