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.
. . . .
NINA TOTENBERG reporting:
Today's age discrimination ruling is different in one important respect. It marks the first time the justices have shielded the states from a civil rights law. The specific case before the court involved university professors in Alabama and Florida who claimed they were paid less because of their age. For lead plaintiff Daniel Kimmel, a theoretical physicist in Florida State University, the message for older employees was stark.
Professor DANIEL KIMMEL (Physics, Florida State University): What it means is that there's no accountability for the states, that we have no recourse if there is discrimination.
TOTENBERG: Writing for the court majority today, Justice Sandra Day O'Connor acknowledged that Congress had specifically included state governments in its ban on age discrimination. But she said Congress was not free to do that because of the Constitution's guaranty of state sovereignty. True, she said, the post-Civil War 14th Amendment gave Congress great power to pass laws to ensure that the states apply the law equally to everyone, but she said laws forbidding the state to discriminate based on age were not an appropriate use of that power. State laws that discriminate on the basis of race or gender are different she said. There, Congress is freer to regulate because the state's behavior is so hard to justify if it discriminates. In contrast, she said states should be free to make rationalizations based on age. . . .
TOTENBERG: Ironically, today's age discrimination decision was announced from the bench just moments before the court was to hear another states rights case. And as Professor Colker observed, for the lawyers defending federal power, even in a different context, it must have been a bit like being socked in the stomach, especially since the court's decision was written by Justice O'Connor, normally considered a pivotal vote in any states rights case.
At issue in the case being argued was the constitutionality of the Violence Against Women Act, a law enacted with overwhelming bipartisan support to allow women to sue their attackers for damages in federal court. Asking the court to uphold the statute was a young woman named Christy Brzonkalas, who claimed that she was raped in her college dormitory by two football players just days after she began school at Virginia Polytechnic Institute. She concedes that she initially told no one of the attack, but months later after a failed suicide attempt, she filed sexual assault charges against the men through the school disciplinary system. Charges against one were thrown out for lack of evidence. But the other, Antonio Morrison, was suspended for a year. And the punishment was upheld by the dean and the provost.
Still, the school later announced the suspension would be delayed until after the football player graduated and his full athletic scholarship would be continued. Brzonkalas then withdrew from school and sued her alleged attackers in federal court under the Violence Against Women Act. Her suit was blocked when a federal appeals court struck down the law as an unconstitutional invasion of states rights.
Brzonkalas, backed by the Clinton administration, appealed to the US Supreme Court.
Ms. CHRISTY BRZONKALAS (Rape Victim, Virginia Polytechnic Institute): We will never have equal rights in this country until we address violence against women. Rape is a brutal form of discrimination. Women are raped because they are women.
TOTENBERG: Inside the courtroom today, Brzonkalas' lawyer had a hard time fending off questions from conservative justices. Congress, she noted, had held four years of hearings and made specific findings about the economic costs of violence against women. And when women are attacked because they are women, she said, Congress is justified in giving them an additional remedy to sue, just as it is in enacting federal hate crime legislation.
Justice Scalia, 'Then why not have a national rape law or a national murder law?'
Answer, 'Because those would take over areas of traditional state concern. This law does not, she said, and noted that nearly three-quarters of the state attorneys general have filed briefs with the Supreme Court supporting federal law.'
Justice O'Connor seemed unpersuaded. 'Using your rationale,' she complained, 'Congress could find evidence of discrimination in alimony and enact a federal alimony law.'
But if Brzonkalas' lawyer got a hard time from the justices, so, too, did the lawyer for former football player Antonio Morrison. Lawyer Michael Rosman argued that the Violence Against Women Act cannot be justified as a valid exercise of Congress' power to regulate interstate commerce. 'There may be indirect effects on the economy from violence against women,' he contended, 'but that's not enough to justify the federal courts getting into the act.'
Justice Breyer remarked dryly that in his view, the Supreme Court has had an unfortunate history of trying to draw lines between local and national conduct. Breyer, 'So if it turns out that people in their own houses are cooking up biological warfare weapons or polluting the whole East Coast from their fireplaces, that's not enough?'
Justice Ginsburg, 'You're not challenging the congressional findings that violence against women limits their mobility, their ability to take jobs at certain hours, for example?'
Answer, 'Yes, we are. You can't distinguish the effects of gender from the effects of overall crime.'
Justice Souter, 'What about the findings of 3 to $ 6 billion in medical costs to employers for violence against their female employees?'
Answer, 'Findings can be made about virtually any activity.'
Justice Souter, 'So you're really saying Congress cannot regulate a non-commercial activity?'
Justice Scalia chimed in. 'I'm concerned about limiting Congress to regulating commercial activity. If Jesse James robs a train, that's not a commercial activity.'
'It is to Jesse James,' quipped Chief Justice Rehnquist.
Justice Kennedy, 'Suppose Congress finds that assaults against blacks are taken less seriously than those against whites? Could Congress make such assaults a federal crime or allow victims to sue their attackers in federal court?'
Answer, 'No, because there's been no discriminatory action by the state.'
Justice Breyer, 'But where there's a congressional finding that the state's legal system has failed to protect minorities or women, why can't Congress create an alternative remedy in federal court?'
Answer, 'That doesn't do anything to make the states comply.'
Justice Stevens, 'Should we accept the congressional findings as valid?'
Answer, 'I think there's reason to question the findings.'
Justice Scalia, impatiently, 'Do you know of any decision of this court that turns on congressional findings?'
Justice Stevens, jumping in, 'Have you read our Lopez decision?'
That was the court's decision three years ago striking down a federal gun law because the justices said Congress had not justified its action with extensive findings.
In the case of the Violence Against Women Act, however, Congress held four years of hearings before deciding what action to take. And the principal author of the bill, Senator Joseph Biden, has insisted that with that long record before it, the court is not free to decide if Congress made the right decision.
Senator JOSEPH BIDEN (Delaware): Who the hell are they not to agree?
TOTENBERG: Biden says agreeing or not agreeing is not the court's role under the Constitution.
The court, however, may disagree in a decision expected by summer. Nina Totenberg, NPR News, Washington.
Linda Greenhouse, "Justices Cool to Law Protecting Women," The New York Times, Jan. 12, 2000: A18.
If the Supreme Court wanted to underscore the constitutional vulnerability of the Violence Against Women Act, it could hardly have orchestrated a more convincing demonstration than it put on today.
Not only did the justices open their session by declaring, in a separate case argued three months ago, that Congress lacked authority to make the federal law against age discrimination binding on the states. But then, during arguments on the constitutionality of the Violence Against Women Act, members of the same five-justice majority in the age discrimination case made abundantly clear their deep skepticism about whether Congress had an adequate basis for opening federal courts to suits by victims of violence "motivated by gender" against their attackers.
Congress passed the Violence Against Women Act in 1994, just before the Supreme Court set itself on its current course of subjecting to searching scrutiny any Congressional action that could conceivably impinge on state sovereignty or traditional prerogatives. In a sense, the statute and the court's growing list of federalism rulings have been on an inevitable collision course that ended in the courtroom this morning, with little evidence that the 5-to-4 states' rights majority would shift course.
"Your approach would justify a federal remedy for alimony, child support, even contract disputes," Justice Sandra Day O'Connor said disapprovingly to Solicitor General Seth P. Waxman, who was arguing the government's appeal of a ruling that the law's civil damages provision was unconstitutional.
Some students of the court have speculated that Justice O'Connor's record of solicitude for women's interests might, in this case, trump her demonstrated commitment to keeping federal power within distinct boundaries. But she gave little sign that she saw this case as in any way different from the other federalism cases, including the age discrimination case in which she announced the court's majority opinion today.
The Violence Against Women Act case is an appeal by a former Virginia college student, and by the Clinton administration on her behalf, from a ruling last year by the federal appeals court in Richmond that barred her from using the law to sue two fellow students, football players who she said had raped her in her dormitory room. The woman, Christy Brzonkala, sued after Virginia Tech took no action against one of the men and gave the other a deferred suspension that permitted him to keep playing varsity football.
The 1994 law has several other provisions, including a criminal section that provides for federal prosecution of interstate crimes of sex-motivated violence. The court last year refused to hear a constitutional challenge to the criminal provision.
The section at issue today in United States v. Morrison, No. 99-5, providing for private civil suits for damages, does not depend on whether a defendant has crossed state lines, because Congress wanted to provide a remedy for violence in or near homes. The absence of an interstate "hook," as Justice O'Connor described it, is a decided liability before a court that has taken a limited view of Congress's power to act under its authority to regulate interstate commerce.
Both Solicitor General Waxman and Julie Goldscheid, representing Ms. Brzonkala on behalf of the NOW Legal Defense and Education Fund, told the court that violence against women had a substantial impact on interstate commerce by deterring women from taking certain jobs or continuing their education.
In striking down the civil damages provision, the United States Court of Appeals for the Fourth Circuit said the law did not come within Congress's power to regulate interstate commerce because it did not address commercial activity. The court today appeared wary of adopting quite such a hard and fast rule, particularly after Michael E. Rosman, representing the defendants in Ms. Brzonkala's lawsuit, Antonio Morrison and James Crawford, said that in his view, Congress lacked constitutional authority to prohibit possession of narcotics for personal use because the activity was not commercial.
But even under a more elastic definition of activity that affects the economy, the justices appeared dubious about accepting the Congressional findings on the economic impact of violence against women.
If the justices find the Violence Against Women Act provision to be invalid under Congress's commerce authority, they could nonetheless uphold it under Congress's authority to enforce the equal protection guarantee of the 14th Amendment, a basis that the Fourth Circuit also rejected. Mr. Rosman, the defendants' lawyer, argued today that the 14th Amendment, which governs only official action, could not be a basis for a law that applies to private behavior.
The law's defenders argue that the statute is aimed at the failure of states to provide adequate remedies for violence against women, an aspect of official action, or inaction, that is appropriately the subject of legislation under the 14th Amendment. But Ms. Goldscheid's and Mr. Waxman's time at the podium ran out before they could address this aspect of their argument.
Mr. Rosman, general counsel of the Center for Individual Rights, a conservative public interest law firm, warned the court that if it upheld this law, "Congress could pass virtually any law" and "relegate the states to a trivial and unimportant role in our federal structure."
Justice Ruth Bader Ginsburg challenged that depiction. "What is the clash here?" she asked. She said Congress's goal was not to displace state authority but "just to provide an alternate remedy, an alternate forum."
She continued: "We are just complementing what the states do. Why can't Congress do that?"
"The power to regulate is the power to pre-empt," Mr. Rosman replied.
Justice Ginsburg persisted, noting that "we have so many parallels in discrimination legislation," with both the states and the federal government barring discrimination in employment and in public accommodations. Why can't the Violence Against Women Act coexist with parallel state laws, she asked.
"Because this is not commerce," Mr. Rosman replied. "This is violence, interpersonal violence, the kind of thing states have had as their exclusive province ever since the start of our country."
The Violence Against Women Act has generally been welcomed on the state level, with 36 states joining a brief in this case in support of the law. Only one, Alabama, filed a brief asking the court to declare the provision unconstitutional.