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When I was working as a lawyer in the Clinton administration, first in the Department of Justice (DOJ), and then as Deputy General Counsel in the Department of Health and Human Services (HHS), I was involved in the debate about the merits of what I call the federalization movement of the 1990s. I arrived to work in the administration just before the passage of the Violent Crime Control and Enforcement Act of 1994, which included a plethora of new federal crimes and enhanced penalties for existing crimes. Among the additions were the Violence Against Women Act (VAWA) and the Freedom of Access to Clinic Entrances Act. Earlier the Congress had enacted the Child Support Recovery Act of 1992 and the Gun-Free School Zones Act of 1990.
These expansions of federal jurisdiction into areas of criminal-law enforcement traditionally within the purview of the states spawned energetic criticism. Federal judges expressed concern that these legislative enactments expanded the reach of federal jurisdiction and that the resulting effects on federal court dockets would cause an erosion of the traditional mission of the federal courts. In their view, constitutional and policy considerations indicated the wisdom of a limited role for the federal courts in these areas, and continued expansion of the role of federal courts would threaten quality and competence. . . .
In late June 2007, the newly formed Roberts Supreme Court of the United States issued two significant opinions: Morse v. Frederick, and Parents Involved in Community Schools v. Seattle School District No. 1. The Morse case involved a Juneau, Alaska, high-school student who was disciplined for unfurling the now-infamous “BONG HiTS 4 JESUS” banner during a school-sponsored event. The Seattle School District case concerned school districts in Seattle and Louisville that were using racial classifications to make pupil assignments in certain schools. Both decisions were narrowly decided and seemed to mark a shift in the constitutional law governing student speech and school desegregation. . . .
It might be tempting for political liberals, who would like to rely upon the United States Supreme Court to defend individual liberties and to sustain progressive legislation, to conclude that the sky has fallen. It started falling, of course, even before the tenure of William Rehnquist as Chief Justice. But with the appointment of John Roberts as Chief Justice and Samuel Alito as an Associate Justice, the transformation of the Court is accelerating. And the sky? Well, one can almost touch it. The modern Court can now be relied upon to strive to protect business interests against legislation designed to protect workers, consumers, and the environment; to halt the judicial expansion of personal liberty interests while expanding judicial protection of property interests; to interpret a “colorblind” Constitution by rolling back affirmative action and school-desegregation plans; to restrict access to courts by upping the ante on pleading requirements and statutes of limitation; and to weaken the boundaries between church and state. On these and many other issues, the Roberts Court’s advancement of the conservative political agenda is well underway. . . .