The Nine [73]
The question put Condon completely in a box. He could not say that the state could sell inferior hot dogs in its parks. He could not say that the state could pay less than minimum wage. So how did Condon answer?
“Justice Breyer, that again is a good question, but that goes to the heart of this case. We aren’t selling hot dogs here.” Condon’s answer was so inept that some people in the audience started to laugh. But O’Connor followed up.
“Well, let me ask you another example,” she said. “Congress passed the Internet Tax Freedom Act, and it told states they couldn’t tax these Internet transactions for a period of time, can’t do it. I suppose under your theory that’s invalid, too. It only dealt with the states and governmental entities. I suppose that’s invalid, is that right?”
This question was even more ingenious, because O’Connor picked a federal law beloved by conservatives. The federal ban on state taxes on Internet transactions could hardly be characterized as the heavy hand of the liberal federal government. But it was, indeed, a federal restriction on state sovereignty. All Condon could mutter in reply was, “That could raise some concerns.”
Through his question, Breyer had underlined the folly of trying to wall off the states from federal regulation. It couldn’t be done, and it shouldn’t be done. The case turned into a rout. At the conference, the vote was 8–1 in favor of the federal law. But then Rehnquist, the great patron of states’ rights, assigned the opinion to himself and that prompted Scalia, the would-be dissenter, to make the Court unanimous.
The chief had not given up on federalism, of course. In the same term, Rehnquist succeeded in invalidating a part of the federal Violence Against Women Act. The disputed provision allowed women who claimed they had been assaulted because of their gender to sue their attackers in federal court. The provision was the kind of political stunt that generated such contempt for Congress among Rehnquist and his allies. Assault victims could always sue in state court; the federal law was largely symbolic, and rarely invoked, and the Court, 5–4, struck it down as a violation of the Commerce Clause. But the effect of the decision in the real world was almost meaningless; it curtailed lawsuits that weren’t being filed anyway. After more than a dozen years as chief justice, Rehnquist had failed to limit the power of the federal government.
In this year of defeat after defeat, Rehnquist also failed to make progress on abortion—in a case where the facts largely favored his side.
The Court had largely stayed away from the subject since Casey in 1992. The decision by the Casey troika of O’Connor, Kennedy, and Souter had not settled the issue for all time, but they had resolved most of the major controversies. First-trimester abortions could not be banned; parental consent laws were permissible; spousal notification—O’Connor’s bête noire—was out. Not coincidentally, public opinion had settled in very much along the lines the Court had devised. President Clinton was pleased with the status quo as well. The law on abortion wasn’t broken, so the justices, especially O’Connor, didn’t try to fix it.
For a little while after Casey, the antiabortion movement floundered, looking for an issue that might restore its momentum in both the political and legal arenas. Then, one day, an anonymous informant slipped an obscure medical paper to Douglas Johnson, a top lobbyist for the National Right to Life Committee. The eight-page work had been prepared for the National Abortion Federation, a group of abortion