Suffolk University hosted New York Times Supreme Court reporter Adam Liptak and an expert panel last Friday, discussing federalism not as a centuries-old abstract constitutional doctrine but as an increasing source of present-day tension between the federal government and the states. The session addressed the impact of federalism on issues such as immigration, gay marriage, and health care.
Liptak, a finalist for the Pulitzer Prize in 2009, said that the current Supreme Court is unique in its approach to justice.
“For the first time in a century we have a court where you can tell how a judge is going to vote by the political party of the president who appointed [him or her],” he said.
Liptak provided context for cases that are likely headed for the Roberts Court, framing many of the current political issues as questions of federalism. For example, he said that the public often sees mandated health care as a civil liberties issue, while the legal argument hinges on the power of the federal government.
Panelist Renée Landers, a Suffolk Law professor and director of the Health & Biomedical Law Concentration, continuing the examination of contemporary issues through the lens of federalism, focusing on challenges to the 2010 federal health care reform law, the Affordable Care Act.
“These efforts to challenge and nullify the federal law probably haven’t been seen since school desegregation,” said Landers.
Professor and Former Suffolk University Law School Dean Robert Smith explained federal preemption challenges to state regulation of undocumented immigrants, raising the question of whether Arizona, in regulating the actions of “unauthorized aliens” enacted a policy “that reflects a disagreement with the federal government’s stance on immigration policy if it allows a state to drive immigrants into nearby states or creates foreign affairs problems for the federal government.”
The Hon. Nancy Gertner, professor of practice at Harvard University Law School, explained the intersection of federalism with the Defense of Marriage Act, calling it a perfect storm pitting states’ rights against discrimination. She said that states’ rights conservatives are set in opposition to more libertarian conservatives who seek to keep the government out of the bedroom.
“One would have envisioned this to be much more contested territory,” said Gertner.
Liptak addressed some of the more idiosyncratic habits of the court. He suggested that the court sometimes tries to avoid getting too far ahead of public opinion by not taking on cases before the states have had a chance to wrestle with the issues themselves. Yet it also “likes to announce from time to time that it’s the decider.”
A common refrain among panelists was that the upcoming legal arguments in cases related to federalism will be so well phrased that each side’s line of reasoning will appear to be the logical response.
“Whichever narrative grabs the attention of the judges is likely to win out,” said Smith.
The event was moderated by the Hon. John M. Greaney, director of Suffolk Law School’s Macaronis Institute for Trial and Appellate Advocacy, which sponsored the event along with Advanced Legal Studies and the Masterman Institute on the First Amendment and the Fourth Estate.