Do Bottom-Line Results Explain the Voting Pattern in Federalism Cases?
Faced with the odd reversal in orientation reflected by the Justices’ votes in congressional power cases and preemption cases, respectively, it is tempting to look for a hidden variable. The most obvious explanation is that the Justices are simply “result-oriented”—that is, conservative Justices make arguments favoring state interests when that will lead to conservative results and they make arguments favoring federal interests when that will lead to conservative results, while meanwhile, liberals do the opposite in pursuit of their own preferred policy outcomes. The result-orientation hypothesis fits the pattern we see pretty well. These days, conservatives have an anti-regulatory bias, while liberals have a pro-regulatory bias. In a congressional power case, the consequence of finding no federal power is typically no regulation, or at least less regulation than there would be if the law were upheld. Thus, other things being equal, we would expect conservatives to be inclined against
