The time has come for the Supreme Court to recognize that this ruthless nationalism is threatening its own federalism agenda. Liberal elites and constituencies are reflexively nationalist. Business interests favor a national arena, for a number of economic reasons. Decentralized politics also favor conservatives because they are more experimental and competitive. They allow conservatives to show that their experiments work, in due course leading citizens to embrace those experiments.
Liberals can win only by inducing Washington, D.C., to cut off the exit routes.
For all these reasons, conservative constituencies have a huge stake in Stenberg's promise of a more decentralized, federalist Constitution. Alas, Justices Kennedy and O'Connor, whose votes decide federalism cases, do not like federalism's conservative constituencies. Delighted to discuss the finer points of federalism with a bipartisan coalition of respectable governors, they recoil when federalism might give more running room to uncouth Catholics who wave placards of dismembered babies. Justice Kennedy in particular has amply demonstrated his distaste for conservative reform projects. Generally a staunch federalist, Kennedy helped overturn conservative state referenda on term limits and gay rights.