by The Associated Press and The New York Times, July 23, 2002
WASHINGTON (AP) -- The Bush v. Gore presidential election case is an example of a hypocritical Supreme Court majority that broadens the rights of states only when it serves conservative ends, Senator Hillary Rodham Clinton said Tuesday.
Clinton, D-N.Y., criticized the court's recent trend of 5-4 cases that have favored state power over federal control. The case that ended Florida ballot recounts in the disputed 2000 presidential election was also a 5-4 vote, but it stripped a state of power to administer its own laws, the former first lady said.
``Perhaps even more disturbing than the court's impulse to defend state and local prerogatives is the selectivity of that impulse,'' Clinton told an audience of law students, lawyers and judges at the liberal American Constitution Society.
States win the power struggle when they want to claim immunity from civil rights lawsuits or get tough on criminals, but not when they want to limit cigarette ads, help fund legal help for poor people, or ``follow their own election laws,'' Clinton said.
The Bush v. Gore case centered on whether a fair recount could be done under Florida election law and still give the state time to have its electors included in the Electoral College.
Clinton called the court led by Chief Justice William H. Rehnquist ``one of the most activist, if not the most activist, Supreme Court ever in American history.''
Conservatives, including President Bush, have criticized ``judicial activism,'' or the substitution of a judge's own views for established law. Conservatives have pointed to the civil rights-era decisions of the court under Chief Justice Warren Burger as examples of such activism.
Critics on the left have countered, as Clinton did Tuesday, that activism is often in the eye of the beholder.
While the court has the power to strike down federal laws, it has been historically reluctant to do so, Clinton noted.
The Warren court struck down federal laws in about 20 cases over 16 years, she said. The Rehnquist court, in the last eight terms alone, has done so in 32 cases. Eleven of those were states' rights cases in which the state prevailed, and many of those involved states trying to avoid ``enforcement of civil rights guaranteed by federal law,'' Clinton said.
``In addition to installing an American president, the current Supreme Court has invalidated federal laws at the most astounding rate in our nation's history,'' Clinton said to applause and laughter.
American Constitution Society: http://www.AmericanConstitutionSociety.org