The morning began with Justice Sandra Day O'Connor announcing, in quiet, measured tones, that Congress had exceeded its power in applying the Age Discrimination in Employment Act to state and local government employers. Moments later, the justices turned their attention to another case and another congressional enactment the Violence Against Women Act, one provision of which allows victims of gender-based violence to sue their assailants in federal court. After an hour of contentious oral argument, it appeared that provision too was headed for the dustbin, a victim of the court's federalism juggernaut.It was a rare convergence of two cases on the same subject, one being announced and the other argued on the same day. The court's 5-4 decision in Kimel v. Florida Board of Regents, striking down ADEA as it applies to state and local employers, contains language that the lawyers who were arguing in the VAWA case almost surely would have liked to look at before they rose to speak. But they could not, and even though none mentioned the Kimel decision, it seemed to cast a shadow over the arguments in favor of VAWA in United States v. Morrison and Brzonkala v. Morrison. "They went from one sinking ship to another," said an exultant Michael Greve of the Center for Individual Rights, author of a recent book on federalism and a critic of VAWA. Greve watched the announcement of the decision and the oral argument.Julie Goldscheid of the NOW Legal Defense Fund went first. In her brief, she defended the constitutionality of VAWA as both a valid exercise of congressional commerce clause powers and a proper enforcement of 14th Amendment equal protection guarantees. But the court had just ruled in Kimel that the 14th Amendment did not justify the application of age discrimination law to the states.Perhaps for that reason, in her oral argument Goldscheid led off with the commerce clause justifications for VAWA, arguing that gender-based violence "substantially affects the national economy" by restricting opportunities for women and keeping them from full involvement in the economy. She cited a four-year record of congressional findings that support that contention.But Justice Antonin Scalia was not buying it, and he launched into a series of questions that took up a big chunk of Goldscheid's 10 minutes of argument time. Scalia combatively suggested that if violence against women affects commerce, then "all crime affects interstate commerce." Could that justify congressional enactment of a general federal law against robbery or murder?"We're not suggesting that," Goldscheid said."I think you are," Scalia shot back.
After several other exchanges like that, Goldscheid's best argument seemed to be that the attorneys general of 38 states had testified in favor of VAWA, asserting that "the law itself works no usurpation of state law." Justice O'Connor, whose vote will be key in the VAWA case, picked up on Scalia's skepticism, however, suggesting that Goldscheid's theory would justify a federal law on alimony or custody, two areas in which state law traditionally controls. Justice Ruth Bader Ginsburg was the only justice who offered Goldscheid a helping hand, suggesting that VAWA could be justified as "an alternate forum," supplementing state remedies but not supplanting them.
Solicitor General Seth Waxman went next, defending VAWA with a notch less of the energy he usually brings to the podium. Between the Kimel decision and the way the court treated Goldscheid, Waxman may have been bracing himself for defeat.Waxman held his own, using his usual bag of tricks to parry justices' questions into opportunities to make his points. When Justice Anthony Kennedy asked Waxman if a federal murder statute could be justified under the commerce clause, Waxman drew laughter when he said, "That requires a somewhat long answer, but I have the question firmly in mind." When Kennedy urged him to "cut to the chase," Waxman answered that such a law would be harder to justify than VAWA, and then he went to the four-part answer he wanted to give.But Waxman clearly did not satisfy justices who were looking for a bright line to draw that would vindicate VAWA without allowing limitless congressional jurisdiction over everything that might have an economic impact.By the time Michael Rosman of the Center for Individual Rights rose to argue against VAWA, he probably knew he had the case won. He was able to coast somewhat. On the 14th Amendment, Rosman argued that it permitted Congress to legislate against state "nonprivate" violations of equal protection. And on the commerce clause, Rosman adopted Scalia's stance.Justice David Souter asked about the congressional finding of $ 3 billion in economic impact flowing from violence against women. "Findings could be made about virtually every activity," Rosman replied.Rosman added, "This is not commerce; this is violence." And violence, he argued, is what states are best equipped to combat.
. . . .