News Release: Faculty Experts, Law, Politics

Jul. 20,  2009

Supreme Court Consensus Unlikely, But That's Good, Says Emory's Schapiro

News Article ImageRobert Schapiro

As the U.S. Senate heads toward confirmation of Judge Sonia Sotomayor for the U.S. Supreme Court, there remains little likelihood of the high court's consensus on hot button social issues such as race, abortion or even federal power, says Emory constitutional law expert Robert Schapiro. And that's a good thing.

The Supreme Court's recent decision on voting rights, which has left much room for future debate, is a prime example of the kinds of contradictions Schapiro addresses in his latest book, "Polyphonic Federalism: Toward the Protection of Fundamental Rights."

Federalism, a unique approach to political power, was adopted by framers of the U.S. Constitution to divide authority between the national government and the states. The question of which government entity has what power is still being raised, says Schapiro, which is to everyone's advantage.

"We've seen throughout our history a continuous renegotiation of that relationship," says Schapiro. Even today with the decline of distinct regional identities (the idea of "states' rights" seems quaint at best), there's also a new interest in federalism, he adds.

"Federalism has come to mean something different today," says Schapiro. "It's really about the importance of decentralization, that the center doesn't always have all the answers. It's not so much that different states are so different from each other, it's that there's really a great value in having many different people, many different units, looking at similar kinds of problems."

Schapio calls this kind of federalism "polyphonic," a musical term he adopted to describe how political authority has evolved today. "Sometimes you have many different voices singing together and that seemed to me an apt metaphor for federalism," he says.

"Federalism today is about the states and the national government exercising overlapping authority," says Schapiro. "As problems become more complex it's important to have many different actors addressing those problems."

The civil rights movement was an important moment in the transition to contemporary federalism, says Schapiro. "The great achievement of the civil rights movement was to say that there are rights of national citizenship, particularly rights to a desegregated education and adequate participating in voting."

But what emerged after the civil right movement "was the notion that federalism does not have to be about protecting pernicious state practices," says Schapiro. "States have a valuable role, not as islands unto themselves, but as partners with the federal government in addressing moral issues."

While there may be general agreement on certain basic rights that need to be protected, "the question is what level of government is going to protect them and to what extent the Supreme Court is going to make that decision."

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