We may have passed the High Water Mark of federalism as I predicted back in April. In Gonzales vs. Raich, the Supreme Court is basically showing that it is a political body just like Congress, the Executive and the Federal Reserve. There may be a longer time between turnover on the Court, but the Justices appear to be responding to conscience and not just the rationality of arguments on their face.

What this means for federalism is that as interests evolve to reflect the growing Republican demographic of a richer, but not too rich society. As more and more are better able to provide for themselves, they see that they give more to the government than they take out. Even as Republican Congresses and Administrations provide huge new benefits, they are still perceived as the party of less government. Nice image if you can get it.

Even if it is just poor execution by Democrats and a overevolved sense of fairness, we are likely on a long-term era of Republican Congress and Presidencies. If only for the reason that there is a whip effect of Republicans winning state houses, then redistricting, there will likely be a 20 year hangover in Congress even if imperial overstretch and an abundance of power splits the Republican party.

What this implies for federalism is that the proponents of the debate will flip. National legislation will be championed by the Republicans while state diversity will be championed by the Democrats.

It has become Democrats like Cuomo arguing that an elitist Senate (with small-state overrepresentation and a super-majority requirement) deserves more power than a populist president when it comes to selecting and approving judges. We will see strange coalitions of conservatives and liberals on the Supreme Court denying federalism on legacy issues. The conservatives to lay the groundwork for a future with much narrower states’ rights and the liberals to be true to principles and to salvage short term political victories (or at least hold the line) on individual cases having to do with the vestiges of challenges to Democrat-approved national legislation.

I predict that there will be a litmus test for new judges not to support federalism. If not by this administration, perhaps the next will get it. So those Justices like Thomas and O’Connor that support federalism on the merits will increasingly be joined by fair-weather federalists from the Left and opposed by the new appointees that will be expected to spread national Republican law throughout the land.