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Role Reversals in Filings With High Court

Strategy: Asking justices to intervene in Florida vote has GOP abandoning states' rights stance. Democrats do about-face in trying to keep federal finger out of the pie.


WASHINGTON — Is the Rehnquist Court in danger of repudiating its own states' rights philosophy if it sides with Texas Gov. George W. Bush and overrules the Florida Supreme Court's determination of state election law?

Or instead, would it be upholding the conservatives' favorite legal principle: that legislators, not judges, should make the rules?

Those questions have been raised often since Friday, when the U.S. Supreme Court took up the Florida election case. The crosscurrents have kept legal experts guessing as to what's behind the court's intervention.

It escaped no one's attention that the lawyers representing each campaign showed that they could change their rhetoric faster than the politicians changed wardrobes.

The Republicans, who usually oppose federal judges' meddling in state affairs, told the Supreme Court that it must bring "finality" to the messy dispute in Florida.

And liberal Harvard law professor Laurence H. Tribe, representing Vice President Al Gore, became a champion of "federalism," the notion that states should be free to make their own decisions. He defended "each state's right to organize its election" without interference from Washington.

But the simple split between states' rights and national power may miss what is at issue, at least in the eyes of Chief Justice William H. Rehnquist and his colleagues.

Over his long career, Rehnquist has insisted that hard decisions should be made by elected state lawmakers, not judges. Looked at through this prism, a Supreme Court ruling for Bush could be seen as a victory for the Florida Legislature over the state's high court. This would be in keeping with the principles espoused by the chief justice and his fellow conservatives.

At the same time, such a ruling would be true to the partisan preferences of the Republican-dominated high court. For many, the line between law and politics in the Florida election dispute looks increasingly blurry.

GOP Charged Bias on Florida Court

Last week, Republicans wasted no time in criticizing as politically biased the Democratic-dominated Florida Supreme Court when it ruled for Gore and extended the deadline for the completion of hand recounts. By late Sunday, however, that decision looked to be less of a victory for the Democrats; Palm Beach County had failed to meet the deadline, and Miami-Dade County officials, believing they would not have time to finish their hand recount, suspended it.

This week, many Democrats and liberal lawyers are wondering whether the U.S. Supreme Court, with its seven Republican appointees, will return the favor by ruling for Bush and the Republican-controlled state Legislature.

Los Angeles lawyer Edward Lazarus, a former Supreme Court clerk, said it would be "an act of rank hypocrisy" for the high court to reverse the Florida court's decision. "It would turn the basic thrust of their states' rights jurisprudence on its head," said Lazarus, whose book, "Closed Chambers," sharply criticizes Rehnquist and his colleagues.

American University law professor Herman Schwartz agreed that a party line vote in favor of Bush would tarnish the court.

"If it's a 5-4 ruling, with the usual conservative lineup, it will be seen as a partisan decision. They will have abandoned their philosophy of states' rights for partisan purposes," Schwartz said.

In recent years, the court has handed down a series of 5-4 rulings that shielded the states from federal laws. For example, the court ruled in January that state agencies and public colleges cannot be sued by employees who are victims of age discrimination, despite the federal law that makes such bias illegal. Rehnquist was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas in this case of state versus federal power.

But the court has not been consistent in this area, especially when states are defending liberal laws.

Hard to Find a Pattern in Decisions

In the last term, Massachusetts came before the high court to defend its so-called Burma law. State lawmakers said they did not want state agencies to buy products from companies that did business with the repressive military regime in Myanmar, formerly known as Burma. Several California cities, including Los Angeles, had similar ordinances.

But in a unanimous ruling, the high court voided these laws on the grounds that the federal power over foreign affairs prevailed.

A similar issue arose in a case involving automobile air bags. Several state supreme courts had ruled that the victims of car crashes could sue auto makers that didn't install air bags. The states have broad liability laws on personal injury cases.

But the Supreme Court disagreed and threw out the state lawsuits. The National Highway Traffic Safety Act controls auto safety standards, and states cannot adopt other standards, the justices said.

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