Assault on Federalism Swipes at Women

Monday, in a burst of judicial activism, the U.S. Supreme Court’s five conservative justices fired another salvo in their jihad against the federal government. This time their target was the Violence Against Women Act (VAWA), a 1994 law passed by Congress to offset the states’ failure to protect women against domestic violence.

U.S. history can be seen as a story of the struggle between federal and states’ rights. The New Deal saw a major shift in power to the federal government, which successive Democratic administrations and their judicial appointees used to protect workers, poor people, women and minorities--often over the opposition of conservative Republicans. When Ronald Reagan became president, conservatives saw an opportunity to turn the clock back and curtail federal power. A key element of this campaign was reshaping the federal judiciary, particularly the Supreme Court. When President George Bush appointed Clarence Thomas to the court in 1991, a slim, five-member conservative majority was finally put together to launch the judicial crusade against Washington.

Waving the banner of states’ rights and blithely ignoring all their own previous strictures against judicial activism, the conservative justices have crafted in just eight years a set of doctrines that have produced some 11 decisions striking down congressional action. The most recent, and potentially one of the most far-reaching, Brzonkala vs. Morrison, was handed down last week.

Christy Brzonkala, a freshman at Virginia Polytechnic Institute, was raped by Antonio J. Morrison and James Crawford, two members of the varsity football team, in 1994. Though the school’s disciplinary system found Morrison guilty, the decision was overturned on appeal, and he was allowed to return the next year. On learning this, Brzonkala dropped out. She sued both Morrison and Virginia Tech in federal court under the VAWA. A sharply divided 4th Circuit Court of Appeals, the most conservative appellate federal court, ruled against her.

Now, at the Supreme Court, she has lost again. The 5-4 majority narrowly ruled that Congress’ commerce-clause power did not extend to matters “noncommercial” or “noneconomic in nature,” regardless of their impact on the economy, and her claim fell into the “noneconomic” category. Brzonkala also relied on Section 5 of the 14th Amendment, which authorizes Congress to pass laws to enforce the amendment, for constitutional authority for the VAWA. That claim was also rejected because, according to the majority, Brzonkala’s suit was against private individuals, and Section 5 authorizes Congress to take action only against states.

The court’s commerce-clause ruling was virtually a foregone conclusion, in light of its 1995 ruling in United States vs. Lopez, in which the court struck down a federal law banning guns in a school zone. There, the court stressed that Congress had made no factual findings to support the claim that interstate commerce was substantially affected. Here, however, there was, according to dissenting Justice David H. Souter’s opinion, a “mountain of data assembled by Congress . . . showing the effects of violence against women on interstate commerce . . . [extending over] four years of hearings, which included testimony . . . from state law enforcement and private business.” In 1990, violence against women cost at least $3 billion a year. Thirty-eight states had urged passage of the VAWA; and 36 supported it before the court.

The court ignored all this data. Instead, in an opinion by Chief Justice William H. Rehnquist reminiscent of pre-New Deal, anti-federal decisions, the conservative majority adopted an approach that put laws into boxes neatly labeled “commercial,” “economic” and “noneconomic in nature.” Constitutional history, however, is strewn with the wreckage of efforts to draw such sharp categorical lines based on the inherent “nature” of the activity. In the pre-New Deal era, one such failure was the distinction between “direct” and “indirect.” A more recent failure was the conservative justices’ attempt, in a 1976 case, to prevent the federal government from regulating “traditional” state activities like employment and transportation and limit it to certain “nontraditional” activities. The court abandoned this effort in 1985, in Garcia vs. San Antonio Metropolitan Transit Authority, after nine years of confusion and wasteful litigation, and said the limits of federal regulation should be drawn by the political branches of government, not the federal judiciary.

All these efforts failed for good reason: As the economy has expanded, the line between economic and noneconomic activity has blurred. One implication of this, as Rehnquist correctly suggested, is that everything can become subject to the commerce clause, and this probably runs counter to the spirit of the clause. But that does not mean the federal judiciary must draw the line between federal and state power. As in Garcia, the matter should be left to the political branches. States have always taken good care of themselves in the political process, for all politics is indeed local. Where the economic significance of an issue is as thoroughly documented and given as thoughtful congressional consideration as with the Violence Against Women Act, there is no reason not to rely on the political process.

The long-term consequences of Monday’s decision are hard to fathom. Many matters can be deemed “economic” and, obviously, much will depend on how narrowly future court majorities construe the category. At the very least, we are in for a great deal of confusion and litigation over what is inherently “economic in nature.”

The narrow construction of Section 5 of the 14th Amendment is equally troubling. The VAWA was passed because, for reasons of gender discrimination, the states were failing to enforce the laws against domestic violence. This failure is literally a “den[ial of] the equal protection of the laws” protecting women, in violation of the amendment’s clear language. The federal government stepped in to remedy that failure and, as Section 5 puts it, “enforce the provisions of this article.”

To Rehnquist and the conservative majority, this was irrelevant. For authority, he relied largely on the Civil Rights Cases of 1883, brushing aside two recent decisions in which a majority of the court indicated that Section 5 allowed suits against private parties regardless of any state involvement. Instead, the 1883 decisions reflected this country’s abandonment of the newly freed slaves after Reconstruction.

There was also no state culpability in those cases, whereas here the states admitted being guilty of discrimination against women by not enforcing the law. Admittedly, this involved not state action but state inaction, but why should that make a difference? In fact, the “state action” doctrine is a judge-made creation and can easily include state inaction. Whether the state is guilty of action or inaction, in both cases it is denying people equal protection of its laws.

Indeed, what other remedy is available to women victimized by state discrimination? Suing state prosecutors for failing to prosecute is hopeless, because prosecutors have absolute discretion over whether to prosecute, and also immunity. Suits against the state itself are almost certainly precluded by the state sovereign immunity doctrines that Rehnquist and his allies have concocted.

An expansive application of the court’s Commerce Clause and Section 5 rulings in the VAWA case could weaken federal action against private discrimination. Because of the 1883 cases, most federal civil-rights legislation has been based on the Commerce Clause. A narrow reading of “economic in nature” could be fatal to these laws and if Section 5 is also interpreted as restrictively as the court has in recent years, victims of private discrimination are in for hard times.

Future developments turn on the presidential race, for some court vacancies are almost certain to develop. If Texas Gov. George W. Bush wins, the assault on federal power will almost certainly continue, for he is likely to appoint justices like his ‘favorites,” Antonin Scalia and Thomas, the most extreme justices. In addition, Bush is from the Southwest, and like other presidents, is likely to appoint justices from his home region. Westerners on the court--Rehnquist, Sandra Day O’Connor and Anthony M. Kennedy--like many other Westerners, have been in the forefront of the fight against federal power.

For years, conservatives, including members of the current conservative bloc, have lambasted judicial activism. Yet, their activism of the court’s conservatives dwarfs that of their liberal predecessors. Whereas liberal activism usually struck at state actions and had the support of the supremacy clause, the current activism targets Congress, a coordinate branch of government. In U.S. history, the court has usually been more deferential. But, then, consistency has never been a strong point with Supreme Court justices, particularly when deeply felt attitudes are concerned. *