Is the "bias for centralisation" in Supreme Court decisions reversible?

The phrase "bias for centralisation" refers to the phenomenon that took place in the United States starting at the time of the New Deal and lasting until the late 1970s whereby the strength of the Federal level of government concentrated around Washington increased dramatically with respect to state and local governments. Over this period federal government expenditure went from being the least of the three levels of government to being almost double the other two combined. Under Reagan however, attempts were made to limit and even reverse this trend. This was mostly carried out through the abolition and modification of the way in which money is distributed to the states; the use of the categorical grant has been reduced in favour of block grants, which have fewer strings attached to them. However, despite these reforms, Chubb maintains that the bias for centralisation remains "institutionalised" in the US political system, and he does not hold much hope for a reversal of this position in the future as, he argues, the reforms that have taken place have been founded on the bipartisan belief in the need to balance the budget rather than any attempts to alter Federal structures of government in the repudiation of the principle of centralisation.
Chubb's analysis is restricted to discussions of the actions of the executive and legislative branches, but it would be an oversight to ignore the role the Supreme Court has played in approving measures that endorse centralisation. Indeed, it has fallen to the Court to make judgements on the very question of how the federal system is to operate, given that the Founders gave little detail of this either in the Constitution itself or in the discussions at the Philadelphia convention. Much has rested on ambiguous clauses in the constitution, such as what constitutes "interstate commerce" (and thus what Congress is at liberty to regulate), what is "due process" in the application of the law, and how to rationalise the powers listed in Article 1 Section 8 with the Tenth Amendment reserving all other powers to the states. King sets out two approaches that have been taken by constitutional scholars: firstly, the dualist approach, that stresses the equality of state and federal governments, and uses the constitution's proscribed limits on the areas of activity of both as evidence that the federal government's role is one that should be highly constrained, and states' rights should be highly valued. A different view is taken by those who ascribe to a co-operative federalist interpretation, and consequently who see the role of the federal government as that of a liberal and interventionist entity in order to make up for the short fallings of the states. The constitution is seen as a contract between the American people, and the elastic clause of Article I Section 8 that allows Congress to make all "necessary and proper" laws to execute its activities as a justification for this approach. King further argues that the dualist approach accurately describes the Court's attitude to federal-state relations for much of the nineteenth and twentieth centuries until the mid-1930s. Since 1945 however, the Court's decisions have reflected a more co-operative outlook. This transformation arose primarily as a reaction to the circumstances of the New Deal; the Court at the time Roosevelt was rushing through his legislation extending the reach of the federal government failed to adapt quickly enough the public mood in accepting the new idea of an interventionist state, and as such continued to make judgements in line with its existing interpretation of the nature of federalism. Thus it was in 1935 that in the case of Schechter Poultry Corporation v. United States the Court upheld the challenge, and declared the National Industry Recovery Act to be an unconstitutional extension of the interstate commerce power. Other similar judgements followed, tearing holes through large parts of the New Deal legislation. The following Presidential election was effectively fought as a matter of confidence in the Presidency over the Court, and Roosevelt's landslide return and consequent effort to pack the Court with those sympathetic to his proposals was intimidating enough to force the Court to re-assess its position. Thus in the 1937 case West Coast Hotel Company v. Parrish, the Court found that state minimum wage laws were permissible; further cases upheld separate parts of the Social Security Act. From then on, the regulatory power of the New Deal was never overturned, despite the opposition that existed from conservative members of the bench. As they retired, the approval of Roosevelt's actions was cemented, the strongest example of this being in American Power and Light v. SEC, where the Court effectively gave Congress a carte blanche to define itself the power available to it under the interstate commerce clause. To this extent, the Court's decision indicated a bias to the superiority of the Federal government over the States in matter of economic policy.
In the post-war period, the area of activity that the Court has occupied itself with has consisted mainly of civil rights and reversing decisions made by previous segregationist Courts. However, it did venture again into the area of interstate commerce, firstly in National League of Cities v. Usery, where it decided that certain amendments to the Fair Labor Standards Act were unconstitutional. This was the only occasion since 1937 where the Court has intervened in such matters, and it reversed this decision in Garcia v. SAMTA just eight years later. The evidence of such cases clearly supports King's view as to the development of the Court's attitude to federalism, However, the Garcia case was met with dismay by many over a perceived encroachment by the Court into States' rights. It has also been estimated that there has been a large financial cost with complying with the decision.
Turning to the issue of whether there is any prospect for a change in direction of the Supreme Court in line with that of Congress, it is important to re-stress the nature of the change that has taken place in the legislature. Centralisation remains an attractive option to legislators because, according to Chubb, it is a straightforward way to ensure that funds are channelled to their constituents, which in turn is the best way to ensure support when the Representative's 730-day term expires. The Court on the other hand, has no need to allocate time to ensuring direct popularity or accountability. It does, however, rely on public support, and takes this into account when making its judgements. The New Federalism of Reagan is theoretically just as prone to being struck down as Roosevelt's New Deal. However, it is unlikely this will happen, as what has occurred has been a modification of an attitude towards federalism prompted by a crisis in a particular area of the economy, namely the budget deficit. Further, the Court's remit in economic affairs is much diminished than at the time of the New Deal; currently it is more concerned with moral issues such as abortion than economic ones. This has not stopped its critics from condemning its part in what they see as the erosion of the Federal system. In particular, the Domestic Policy Council 1986 report The Status of Federalism in America aimed most of its criticism at the Court for ratifying the actions of the political branches of the government and for what it saw as essentially amending the constitution to impose new limits on states' powers that are not explicit in the constitution. Although hard-hitting, this report was prepared by a core group of Reaganite Republicans, and so was bound to criticise any vestiges of the pre-Reagan political order, which the Supreme Court undoubtedly still was (Reagan had by that time only appointed three of the justices). Furthermore, any attempt to force a return to dualist federalism would be premised on the idea that such a course enjoyed widespread popular support. With the forced temperance of strictly dogmatic monetarism, the chances of this happening are remote. As long as there exists among the public the implicit approval for the current state of federal relations, then the Court is liable to make judgements in accordance with that. Despite the scarcity of studies of the impact of the judiciary on centralisation, it is obvious that the Court has had a tremendous impact in allowing such a process to occur. Whether it would be willing to reverse the legacy of sixty years of judgements and prompt moves to decentralise seems highly unlikely.