Making Our Democracy Work (22 page)

The upshot is a tripartite institutional arrangement—Court, Congress, and agency working together in an empirically based area of law to determine whether and when a state has violated a basic constitutional principle. The arrangement permits the Court to work cooperatively with both legislative and executive branches of government, taking advantage of their expertise in giving concrete meaning to federalism’s subsidiarity principles.

T
HE THIRD FEDERALISM
subject returns to the problem of the national legislature, namely, Congress, seeking to invade state authority. It focuses this time on the basic unlisted powers that the Tenth Amendment “reserve[s] to the States respectively, or to the people,” and not on the list of legislative powers that the Constitution grants to Congress. Here the Court can often best protect the federalism principles, not by striking down federal laws as contrary to the Tenth Amendment or by trying to define the specific nature of the reserved powers to which it refers, but by keeping the basic federalism (or subsidiarity) principles in mind, using them as
factors
that help guide the Court to a better result in specific cases involving statutes and other parts of the Constitution.

Consider a widespread legal problem, preemption. When Congress enacts a federal statute, say regulating interstate trucking equipment, it has the legal power to invalidate related state laws. It might invalidate all the state laws that cover the same general subject matter, for example, all those regulating interstate trucking equipment. It might invalidate state laws that directly conflict with the federal statute, for example, those that create an opposite headlight rule for interstate trucks. It might invalidate state laws that stand as significant obstacles to the federal statute’s accomplishing its basic objectives, for example, those that set rules requiring truckers to put various kinds of opaque rain screens just above the headlights. In any actual statute, however,
Congress may not say precisely what it has done, so courts may have to decide whether the federal statute implicitly preempts, hence invalidates, a particular state law.

For example, Congress enacts a statute delegating to a federal agency, the Food and Drug Administration (FDA), the authority to require specific forms of labeling to ensure drug safety. The FDA then determines that drug manufacturers should list five different risks on a drug label. Can a state require the firm to add a sixth risk? Can it authorize a jury in a state court tort suit to find a manufacturer liable for failing to warn about that sixth risk and to assess large damages?
¹⁸

The federal statute itself does not say whether it means the agency’s requirements to act only as a floor, thus permitting the state to add further requirements, or also as a ceiling, such that the state cannot add further requirements. Nor does the purpose of the statute—increased safety—tell a court very much. Adding words on the label to avoid tort liability will sometimes mean a safer product (when the words properly identify a further risk) and sometimes a riskier product (when the requirement leads drugmakers to modify an otherwise adequate drug label, confusing consumers and thereby making all labels less effective).

Can the basic federalism or subsidiarity principles help? They tell us to leave matters at the local level unless federal regulation is needed. But once again we need considerable factual and technical knowledge about how drug regulation works before we can know whether, on balance, state tort suits will help or harm the federal statute’s efforts to put pharmaceutical drugs in the hands of those who need them without undue risk.

At this point we might refer back to the discussion of the dormant commerce clause to consider again the cooperative institutional effort that works well in that context. Will it work well here? The issue before the Court involves Congress’s delegation of authority to a federal agency. In this example the statute is silent about preemption. There are strong arguments both for and against permitting local decision making (that is, state tort suits) to supplement federal decision making (that is, the FDA’s labeling requirements). And the application of a federalism principle (such as subsidiarity) helps us only if we can obtain considerable factual information and experience (about how the drug and related federal regulation work in practice).

Who has that factual information and experience? An agency, not a court. Thus, as in the dormant commerce clause area, the Court might turn to the agency for help. The agency has or can obtain and evaluate the information; the agency understands the statutory scheme; and the agency, when deciding policy matters, must normally solicit and consider the views of all interested parties, including the states. Why not, then, let the agency make the relevant preemption decision? If the agency decides that its rules preempt state tort suits, then the Court would defer to that agency decision. If the agency says nothing, the Court could assume that the FDA’s rules are not intended to, and do not, preempt state law.

This example shows how the Court might interpret ordinary statutes in light of basic federalism principles. The Court will ascertain Congress’s basic statutory purpose. In doing so, it might look particularly hard to find ways, consistent with that basic purpose, for states to play a role, particularly in areas where states have special experience. The Court might also turn to, and rely upon, a specialized agency for obtaining and evaluating relevant empirical information while deferring to agency decisions that rest on that agency’s expertise. In a word, the Court can search for partnerships among government institutions, including Congress, agency, and Court, in an effort to make more informed, more effective decisions, where each can make use of the competences of the others.

T
HE
C
OURT CAN
also help protect the states in several ways when it interprets seemingly unrelated provisions of the Constitution.
New State Ice
, mentioned earlier, provides a good example. In 1925, Oklahoma enacted a law that regulated the business of selling ice, which was used to cool refrigerators. At that time Supreme Court precedent said that the Constitution’s prohibition against taking “property” without “due process of law” only permitted this kind of regulation if the business was special in some way—in particular if it was “affected with a public interest.” The Liebmanns, who wanted to enter the ice business, argued that it was not special and ice was just like meat, potatoes, or other commodities, only colder. The Liebmanns were likely right about the relation of ice to other commodities. But even so, Justice Brandeis
(joined by just one other dissenter) voted to uphold the law. He interpreted and applied a constitutional provision, namely, the due process clause, which on its face says nothing of federalism, in light of one of federalism’s basic objectives, namely, allowing the states to act as laboratories engaged in economic experiment.
¹⁹

A more recent example shows how the Court can implement federalism by keeping that objective in mind when it considers other constitutional provisions. The Court in 2007 faced the question whether the Constitution’s equal protection clause forbade two cities, Seattle and Louisville, to consider their students’ racial heritage in developing plans that further racial diversity in primary and secondary public schools.
²⁰

Until the
Brown
decision, Louisville had had a totally segregated school system, after which it desegregated under the supervision of a federal court. When the federal court finally ended its direct supervision of the Louisville schools (many years later), the overall school population was about 30 percent black and 70 percent white. The school district then drew boundaries, arranged student transfers, and administered other parts of a complex plan all designed to make certain that every school had a racially diverse student body. No school was to have fewer than 15 percent or more than 50 percent black students.
²¹

In Seattle, the school board had tried voluntarily to integrate its racially divided school system, only to discover that many white families were moving to the suburbs, leaving many city schools without racially diverse populations. Seattle developed a complex plan designed to attract white suburban students back to city schools. The plan ensured each student the freedom to choose a high school. But when that freedom meant a particular school was oversubscribed, the plan provided a race-based tiebreaker. If the school’s minority or majority race enrollment fell outside a 30 percent range centered on the overall minority/majority population ratio within the district, then a student might have to delay entering for a year. This was also the case if a student’s immediate entry would make the school less diverse than the range permitted.
²²

Four members of the Court found both the Seattle and the
Louisville plans unconstitutional, reasoning that the use of virtually any race-based criteria violated the equal protection clause. A fifth member joined them on somewhat less restrictive grounds. The remaining four members of the Court (I was one of them) disagreed strongly. We argued that the Fourteenth Amendment applies more strictly when a race-based distinction thwarts its basic purpose—when it puts racial minorities at a disadvantage—than when a race-based distinction seeks to further that basic purpose by, for example, seeking increased racial diversity. We pointed to precedent that we believed strongly supported the minimal use of racial criteria where needed to achieve integration. We added that a history of segregation, followed by efforts to achieve integration in the two cities, supported use of the race-based criteria before the Court. And we said that use of those criteria furthered
Brown’s
practical antisegregation objectives.
²³

The results were hotly disputed, for each side felt strongly that the other side had misunderstood or misapplied precedent, had misunderstood or misapplied the Constitution’s basic objective, or had miscalculated the likely effects of their positions on the nation’s ability to end racial discrimination. I shall not repeat the major arguments, for only one of them is directly relevant to the subject matter here, namely, federalism.

This particular argument looked in part to principles of federalism as supporting the dissenters’ views. The dissenters pointed out that the Court has long based its “public school decisions” on the view that “the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue.” It thereby takes account of the importance of local communities, understanding their own needs, resources, histories, and conditions, to find their own locally oriented solutions to a lack of diversity. In fact,
Brown II
had said that judges should take account of such factors, even though doing so might hinder integration. To the dissenters it was clear that the Court should address these factors—reflecting principles of federalism—when local communities seek to
achieve Brown’s
basic goals.
²⁴

The dissenters’ federalism point was the following. No one can be certain how best to achieve the Constitution’s goal: “how best to stop
harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing
de facto
segregation, troubled inner city schooling, and poverty correlated with race.” The “Constitution creates a democratic political system through which the people themselves must together find answers.” And respect for local institutions is one part of that system. The Court should be aware of that fact (as it was in
Brown
) even when it interprets a part of the Constitution that does not explicitly refer to federalism, here the equal protection clause. In this way principles of federalism, by informing an interpretation of many separate provisions of the Constitution, added weight to the dissenters’ interpretation of the equal protection clause.
²⁵

T
HIS CHAPTER ILLUSTRATES
how the Court (aware of Brandeis’s four “truths”) has applied principles of federalism or subsidiarity in different ways in different circumstances. When the Court seeks to determine whether Congress has reached beyond its delegated legislative powers, these principles may well lead the Court to defer more willingly to Congress. When the Court seeks to protect the national marketplace, the principles may lead the Court to count on Congress or an agency for continued dialogue. When the Court seeks to protect state authority, the principles may lead the Court to interpret statutes and seemingly unrelated constitutional provisions in ways that reflect federalism principles. Through these kinds of nuanced applications of subsidiarity, the Court’s decisions can promote workable relationships with government officials, whether federal or state, while simultaneously drawing government solutions closer to the people. Thus the Court’s decisions can have pragmatic as well as democratic value, which is a powerful combination for securing continued public acceptance.

S
O FAR
, I have explored ways in which the Supreme Court makes its decisions workable (and therefore acceptable) by respecting the roles of, and relationships with, other governmental institutions. Now, can it accomplish the same thing with other federal courts? Obviously, courts at different levels within the judicial system perform different tasks. By throwing this fact into its decision-making balance and giving it considerable weight, the Court can help maintain a judicial system that works well taken as a whole, a judicial system that resolves disputes fairly and expeditiously overall. To elaborate on this, I provide illustrations in which the Court’s members disagreed about the importance of specialization, that is, about how much weight to give to a lower court’s comparative advantages.