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.