Realism about federalism

In this Essay, Professor Cross responds to recent academic efforts to devel op a robust judicial federalism doctrine, which advocate increased judicial review of legislative activities and suggest that an expanded federalism d octrine would have significant, negative consequences. Professor Cross chal lenges rite assumption that courts would apply a principled, neutral doctri ne of federalism, using empirical evidence to demonstrate that courts consi stently have invoked federalism for political or ideological reasons. He su ggests that the flexibility of the proposed federalism doctrines would allo w judges to manipulate results to achieve ideological ends and that the res ulting intrusive judicial review would implicate separation of powers conce rns and impair legislative functioning He argues further that institutional realities-the susceptibility of judges to the concerns and influence of th e other branches of government-would prevent such federalism from being a m eaningful restriction on the powers of the federal government in any event. Professor Cross concludes that proponents of expanded federalism should fo cus their efforts on creating a practicable doctrine that is not as vulnera ble to ready manipulation and high systemic costs.