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Narrowing the Nation's Power The Supreme Court Sides with the States

Author Interview
"The conservative, resident theologian of the U.S. Circuit Court of Appeals . . . has delivered a roundhouse punch to the U.S. Supreme Court's promotion of states' rights at the expense of congressional power."

Pamela Maclean, San Francisco Daily Journal


U.S. Supreme Court Critique Packs a Wallop

Imprints interviewed John T. Noonan, Jr., Robbins Professor of Law Emeritus at the University of California, Berkeley, who currently holds the Maguire Chair in Ethics at the Kluge Center of the Library of Congress and is a senior judge of the United States Court of Appeals for the Ninth Circuit. He is also the author of a dozen books, including five with UC Press—The Antelope (1977), Bribes (1987), The Lustre of Our Country: The American Experience of Religious Freedom (1998), Persons and Masks of the Law (2002), and the recently released Narrowing the Nation's Power: The Supreme Court Sides with the States (2002).

In his new book, Judge Noonan explains how, in a series of decisions on states' rights cases over the past five years, the Supreme Court has swung the balance in favor of the fifty states and against the federal government and Congress. By ruling that states and state-related entities have "sovereign immunity" from federal laws, he argues, the Court has established a trend that threatens the constitutional balance among the branches of government. Narrowing the Nation's Power has been reviewed in the New York Times as well as other prestigious media and has sparked heated debate.

Q: Of the many constitutional issues that you consider as a federal judge, why did this one suggest treatment as a book?

A: In 1997, while I was researching religious freedom in the American tradition begun by James Madison, the Supreme Court in the Boerne decision held that the Religious Freedom Restoration Act was unconstitutional as applied to the states. The decision was a bombshell, overturning legislation passed nearly unanimously by Congress and, in essence, setting new criteria for Congress to meet. So I began to examine Supreme Court decisions to see if Boerne was a fluke or part of a trend, and it turned out that a clear pattern emerged. I also found inspiration in Robert Jackson's Struggle for Judicial Supremacy, an ironic commentary on Supreme Court decisions invalidating New Deal legislation.

Q: What was the most intriguing part of writing this book?

A: For me, to get into the facts of the particular cases—often obscured by the justices' focus on the big constitutional issues—was the most rewarding part. For example, in a case where the Court held as unconstitutional the Violence Against Women Act, I hadn't known that the suit involved a gang rape by members of a top-ten state university football team, and the only sanction for the alleged assault was temporary suspension of one of the players.

Q: How have your colleagues in the judiciary and elsewhere responded so far?

A: Individual judges who have read the book have been enthusiastic. Of course, the majority of the Supreme Court has made up its mind.

Q: Whom do you envision as this book's audience, and what impact do you hope it will have on them?

A: I hope that this book will be read not only by lawyers and law students and molders of public opinion, but also by all citizens interested in the balance of power in our democracy. I don't expect this situation to be remedied overnight, but informed public opinion is the ultimate remedy for judicial lawmaking that departs from the common understanding. The Senate Judiciary Committee is expected to hold hearings based on the book at the beginning of October.

Q: What is your next project?

A: I'm giving the 2003 Erasmus Lectures at the University of Notre Dame. The topic will be the development of moral doctrine—one of my favorite subjects, and more relevant than ever, so I'm excited about exploring it in depth.