Constitutional Commentary, Vol. 6, No. 2 (Summer 1989), pp. 367-382


Richard Fallon's recent article, "The Ideologies of Federal Courts Law," [74 Va. L. Rev. 1141 (1988)] offers valuable insights into a bewildering body of Supreme Court doctrine. He effectively demonstrates the "substantial doctrinal instability" of this body of law, and also discerns a pattern amid the chaos. Fallon's treatment of the case law and the scholarship is fair-minded, meticulous, and incisive.

I disagree, however, with one aspect of Fallon's thesis. In my view, he falters when identifying sources of the discontinuity in the doctrine. In Part I of his article he argues that the decisions reflect "two sets of incompatible assumptions" which "influence...thought about judicial federalism issues" and "produc[e] a conflicted and self-contradictory body of law." The "Federalist" model favors state courts and views the states as sovereign entities at least in some respects free from national control. The "Nationalist" model would abrogate state sovereignty and assign a larger role to federal courts in constitutional adjudication. At the outset of the article, Fallon declares that his models represent two divergent "deep structures of understanding" of the federal system and the roles within it of federal and state courts. He insists that the models are not reducible to "crudely political" stances aimed at attaining conflicting substantive goals.

I believe Fallon is mistaken in thinking that the clash between partisans of the Federalist and Nationalist models can be traced to disagreements over governmental structure and judicial roles. The value of Fallon's models depends on how they fare in comparison with a raw ideological approach or the task of explaining what the Court does and why. I find that they do not illuminate the case law as well as a straightforward emphasis on substance and hence are inferior to the "crudely political" thesis Fallon rejects. In short, Fallon's thesis is wrong. The conflict and contradiction in this area rest on politics rather than conflicting "deep structures of understanding" of the federal system.