Supreme Court Justice Samuel Alito has been closely associated with an approach to constitutional interpretation commonly referred to as judicial minimalism, in which a justice will decide a case on the narrowest basis possible. As he put it in his majority opinion in NASA v. Nelson (2011), the Court should decide only the narrowest question “before us and leave broader issues for another day.” However, his concurrence in the judgment recently in Bond v. United States (2014) raises an interesting question: Is he beginning to waver from his commitment of judicial minimalism?
Herewith, Bond v. United States is making its fourth appearance on this blog (prior entries here, here, and here.) But we’re pikers: having already ruled on the case once (on a jurisdictional question), the Supreme Court looked at the case eight times before finally granting cert this past Friday. No Court watcher can recall anything like it. The justices occasionally “relist” a case for cert consideration; if it gets relisted again, that usually means that the case was rejected and one or more justices asked for time to write a dissent from the denial. Seven relists, and then a grant? The perplexing trajectory suggests that this case may be a very big deal indeed—for federalism, treaty law, and the U.S. Constitution. Not to mention sanity.
Rarely does a unanimous Supreme Court announce a sea change in the balance of power between the states and the federal government. But nearly a year ago, on June 16, 2011, the Court did just that. In Bond v. United States, the Court effectively extended an invitation to strategic lawmaking and litigation under the Tenth Amendment. Constitutionalists should accept the Court’s invitation.
The unanimous opinion penned by Justice Anthony Kennedy could signal the beginning of the end of the federal government’s inexorable expansion into areas the Tenth Amendment reserves exclusively to state and local government, such as local criminal law, health care and firearms regulation. With unusual clarity, the Court ruled our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.” It underscored that the primary reason for dividing power between the states and the federal government is to protect individual liberty; observing, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity . . . Federalism secures the freedom of the individual.”
In view of these principles, the Court ruled that individual citizens can sue the federal government when it violates the Tenth Amendment. But the Court went even further than that—it declared that the states themselves may advance the goals of federalism through “positive law.” Bond expressly declared that our system of federalism empowers “[s]tates to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” And all of this took place within the context of a case that challenged a federal law stemming from an international treaty on chemical weapons—a context in which federal power would otherwise seem to be at its zenith under modern case law.