[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Extensions of Remarks]
[Pages E2220-E2221]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NO SURPRISE. IT'S AN ACTIVIST COURT

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                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Friday, December 15, 2000

  Mr. CONYERS. Mr. Speaker, today I rise to commend Larry D. Kramer, 
professor of law at New York University, who eloquently points out in a 
December 12, 2000 New York Times editorial that the Supreme Court, 
under the leadership of Chief Justice Rehniquist, has steered the court 
towards ``conservative judicial activism.'' Mr. Kramer points out that 
the Rehnquist Supreme Court's recent decision to step into the Florida 
Presidential vote controversy should be no surprise, given the recent 
Supreme Court's past judicial behavior. Mr. Kramer offers a litany of 
examples that show how the Rehnquist Supreme Court has a conservative 
judicial activist agenda. For example, the Supreme Court cast aside 
nearly

[[Page E2221]]

70 years of precedent in the area of federalism, by ruling that 
Congress could no longer address violence against women, could not 
impose liability on state governments for age discrimination, or could 
not hold states accountable for violating copyright laws. The Florida 
case shows that judicial prerogative, not state's rights guides the 
Rehnquist Supreme Court. The recent Supreme Court ruling to vacate the 
Florida Supreme Court's decision to allow for the recount of uncounted 
ballots during the Bush-Gore Presidential election unfortunately will 
forever taint the Supreme Court as arrogant, impartial, and partisan. 
Professor Kramer's deserves praise for analyzing the Supreme Court's 
drift towards ``judicial prerogative,'' and away from a strict 
constructionist judicial philosophy.

                [From the New York Times, Dec. 12, 2000]

                  No Surprise. It's an Activist Court.

                          (By Larry D. Kramer)

       The Supreme Court has reached out aggressively to solve the 
     nation's election problem, inserting itself into a major 
     political controversy. News commentators and legal experts 
     seemed surprised when the court stepped into this thicket. 
     They shouldn't have been.
       the Rehnquist Court has been using law to reshape politics 
     for at least a decade. We keep hearing that it consists of 
     ``strict constructionists'' who (as George W. Bush put it 
     during the debates) oppose ``liberal judicial activism.'' 
     That's because conservative judicial activism is the order of 
     the day. The Warren Court was retiring compared to the 
     present one.
       Warren Court activism was largely confined to questions of 
     individual rights, mainly racial equality and the treatment 
     of criminal defendants. The Rehnquist Court has been just as 
     active in this domain. To list a few examples, it has 
     disowned affirmative action, finding no difference between 
     Jim Crow and laws designed to help disadvantaged minorities. 
     It has overturned decades of jurisprudence that protected 
     religious minorities from laws that intruded on their 
     rituals. And it has all but eliminated the right to federal 
     review of state criminal cases.
       Individual rights are important, but they actually affect 
     only a small portion of what government does. The real guts 
     of our democracy lie in the system's structure and the way 
     powers are allocated. And here the
       The court cast aside nearly 70 years of precedent in the 
     area of federalism, holding that Congress cannot use its 
     powers under the Commerce Clause or the 14th Amendment to 
     regulate matters that touch on state interests, unless the 
     court approves. It has declared, among other things, that 
     Congress could not address violence against women, could not 
     impose liability on state governments for age discrimination, 
     could not hold states accountable for violating copyright 
     laws and more.
       But perhaps the most audacious instance of judicial 
     activism is the way the court has extended the doctrine of 
     judicial review itself. It was the Warren Court that first 
     clearly established, in connection with school desegregation, 
     that the Supreme Court has the final word about the meaning 
     of the Constitution. Still, that court usually (though not 
     always) gave great weight to the interpretations of other 
     political actors.
       But the Rehnquist Court has no such inclination. Thus the 
     court struck down the Religious Freedom Restoration Act 
     because it was unwilling to give Congress the authority to 
     provide greater protection to religious minorities than the 
     court itself would give.
       Many have viewed the court's actions as aimed at protecting 
     states by limiting the federal government. But the Florida 
     case shows that state governments get no more deference than 
     other branches of government when they run afoul of the 
     court's views of what the law ought to be. Judicial 
     prerogative, it seems, not states' rights, has been at the 
     heart of the Rehnquist Court's docket.
       The court's confidence in its own supremacy may have 
     propelled it to try to settle this presidential crisis. And 
     if the court succeeds, the nation may well breathe a sign of 
     relief, grateful that someone brought this mess to a close. 
     But the court's credibility will surely suffer. And if that 
     diminishes a confidence that has begun to veer toward 
     arrogance, this may not be such a bad thing.

     

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