The Supreme Court, Regime Politics, and Federalism: From the New Deal to the Trump Era

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the commitment to those new federalism principles shifted in the Republican political party and partisan politics became fragmented in the twenty-first century, so too did the Supreme Court’s commitment. This article traces how the GOP’s commitment to federalism migrated to the courts in the late twentieth century, but by the time President Trump was elected in 2016, the Republican Party and the conservatives on the Court eventually shifted their focus on constitutional structures of government from federalism to issues involving separation of powers and presidential power.