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Judicial Behavior and the Rehnquist Court's Federalism Revolution

Congressional Research Service

Attempts to demonstrate that law systematically influences the behavior of the justices of the Supreme Court have traditionally foundered on the inability to provide systematic tests for such influence. At the same time, attitudinalists have traditionally asserted that the influence of law and policy preferences must be mutually exclusive, which is an unreasonably high standard. In this article, I develop a model of what federalism might look like to a Supreme Court justice. In doing so, I emphasize the difference between constitutional and political federalism but in the context of the judicial role in federalism. The model is then tested by looking at the pro-state bloc in the late Rehnquist Court, finding that four of the five justices can be considered federalists. The evidence presented here can be taken as a test of the influence of law beyond the influence of ideology of Supreme Court justices.

Key Words: judicial politics • federalism • Rehnquist Court • legal influence • judicial behavior • judicial ideology

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