Reckoning at the Supreme Court
The Violence Against Women Act reached the Supreme Court in January of 2000, with a case brought by Christy Brzonkala, who said she had been raped in her first days as a college freshman. Her case arrived with a dramatic narrative that the Court was obligated, legally, to “accept as true.” Opposing lawyers were making their primary legal challenge not against the veracity of Christy Brzonkala but against the law on which her case relied: the civil rights section of the Violence Against Women Act.
The facts before the Supreme Court were presented most clearly by the judge who wrote the majority opinion for a three-judge panel of the United States Court of Appeals for the Fourth Circuit. The story of Christy Brzonkala, as told at length by Judge Diana Gribbon Motz, began as follows. “On the evening of September 21, 1994,” in the first weeks of Christy Brzonkala’s first term as a freshman at Virginia Polytechnic Institute, known as Virginia Tech,
Brzonkala and another female student met two men who Brzonkala knew only by their first names and their status as members of the Virginia Tech football team. Within thirty minutes of first meeting Brzonkala, these two men, later identified as Antonio Morrison and James Crawford, raped her.
Brzonkala and her friend met Morrison and Crawford on the third floor of the dormitory where Brzonkala lived. All four students talked for approximately fifteen minutes in a student dormitory room. Brzonkala’s friend and Crawford then left the room.
Morrison immediately asked Brzonkala if she would have sexual intercourse with him. She twice told Morrison “no,” but Morrison was not deterred. As Brzonkala got up to leave the room Morrison grabbed her, and threw her, face-up, on a bed. He pushed her down by the shoulders and disrobed her. Morrison turned off the lights, used his arms to pin down her elbows and pressed his knees against her legs. Brzonkala struggled and attempted to push Morrison off, but to no avail. Without using a condom, Morrison forcibly raped her.
Before Brzonkala could recover, Crawford came into the room and exchanged places with Morrison. Crawford also raped Brzonkala by holding down her arms and using his knees to pin her legs open. He, too, used no condom. When Crawford was finished, Morrison raped her for a third time, again holding her down and again without a condom.
When Morrison had finished with Brzonkala, he warned her “You better not have any fucking diseases.” In the months following the rape, Morrison announced publicly in the dormitory’s dining room that he “liked to get girls drunk and fuck the shit out of them.”
Brzonkala at first told no one what happened. She withdrew from friends. She cut her hair short. She skipped classes.
Eventually she told a roommate she had been raped. Later she filed a complaint against both football players under the college’s sexual assault policy. The complaint stayed internal partly because sexual assault, as Judge Motz noted, “is the only violent felony that Virginia Tech authorities do not automatically report to the university or town police.”
During Tech’s taped investigation, as Motz recounted, Morrison admitted that he had sexual intercourse with Christy Brzonkala even though she said “no.” Although Tech decided it lacked evidence against Crawford (who denied the charge and was backed by a suitemate), it found Morrison guilty of sexual assault. It suspended him for two semesters.
Morrison’s attorney threatened to sue Tech on procedural grounds: Morrison had been found guilty under a sexual assault policy that, though released for dissemination to students months before Brzonkala reached campus, had not yet been printed in the student handbook. Tech’s dean of students went to Brzonkala’s house, a four-hour journey from campus, to ask her to participate in a second hearing—“a mere technicality to cure the school’s error,” as Judge Motz put it.
Brzonkala learned later that she could not merely resubmit previous testimony from her witnesses. The university wanted sworn affidavits, which she lacked time to get. “In contrast,” wrote Judge Motz, Tech gave Morrison “ample time to procure the sworn affidavits” of his student witnesses, and Tech “exacerbated this difficulty by refusing Brzonkala or her attorney access to the tape recordings of the first hearing, while granting Morrison and his attorney complete and early access to those tapes.” Despite these limits, the committee found Morrison had “violated the University’s Abusive Conduct Policy” and again imposed suspension for two semesters. When Morrison reappealed, a Tech provost reaffirmed that he had indeed violated Tech’s policy on abusive conduct.
But comparing Morrison’s offense to other cases involving abusive conduct, the provost judged his suspension “excessive.” The Tech provost eased the penalty to a novel form of suspension—“deferred” until after Morrison graduated. He would lose no time away from Tech. The provost, as Judge Motz remarked later, “did not elaborate on the ‘other cases’” that led Tech to devise nonexcessive penalties.
Tech did not tell Brzonkala that the man she said had raped her would return to campus with her for the fall of 1995. She learned from a sports page in the Washington Post. It said Morrison’s “return to school also means a return to football,” as linebacker on Tech’s powerhouse team. (It went to that year’s Sugar Bowl. By then Morrison and Crawford had each been charged with new criminal violence—breaking the door of a bar; hit-and-run involving a car—and so missed Tech’s big game.)
Reading Christy Brzonkala’s narrative of those facts, no judge doubted that they met VAWA’s definition of gender-motivated violence. The first federal judge to hear Brzonkala’s case, Judge Jackson L. Kiser of the United States District Court for the Western District of Virginia at Roanoke, found against her in 1996 even though he spent much time affirming that her case met the much-debated animus test—that the “crime of violence” she suffered be due at least in part “to an animus based on the victim’s gender.” A gang rape, he said, “indicates a conspiracy of disrespect.” Further, by gang-raping a woman they had met only a few minutes earlier, the judge said, the rapists showed they “had little if any knowledge of Brzonkala’s personality.” In a rape not based on personality, said the judge, “an inference of gender animus is more reasonable.”
A gang rapist’s statement to his victim that she “better not have any fucking diseases,” the judge said, gave further evidence of the “disrespect that Morrison had for Brzonkala.” And even “more relevant to gender animus,” the judge ruled, was that Morrison had stated, in the presence of at least one woman, “I like to get girls drunk and fuck the shit out of them.” A rapist need not say “I hate women,” added the judge, in order to be sued under VAWA.
But finally, Judge Kiser ruled, the details of any attack on Christy Brzonkala in this case did not matter. On grounds of federalism—“if our federal system is to survive,” as he said—Congress lacked authority, under either the commerce clause or the Fourteenth Amendment, to pass the Violence Against Women Act. Congress, he said, cannot “cure all of the ills of mankind”—phrasing that made violence by men seem, like sin or slavery, biblically ancient. Judge Kiser ruled unconstitutional the civil rights section of VAWA, beginning its route to the Supreme Court.
FOUR DAYS BEFORE ORAL ARGUMENT at the Supreme Court, Christy Brzonkala stood awkwardly at a podium for a press conference organized by NOW Legal Defense. She looked like the athlete she had been in high school, the center on a basketball team that reached the finals of the Virginia state championships. But now, shoulders slumping, she looked as if she had been brought before the press to describe a bad loss. “It’s too traumatic for me to recall the details of that night,” she began. “I don’t want to keep reliving it. But I can tell you this: rape is like having your soul torn out.” As for VAWA, she continued, its passage declared that “rape is a brutal form of discrimination. Women are raped because they are women.”
When reporters asked what she was doing now, she said she had become a “local Washingtonite,” working in a restaurant. She said she planned to go back to college, but when a reporter asked how soon, she said she had no idea: “I don’t try to plan any more.” A reporter asked her to speak on an “emotional level” about setbacks in her case. “It’s been tough,” she said. “My whole take on the thing is that, you know, I should go as far as I can go so that I don’t look twenty years down the line and say: I could have done something else”
In earlier rounds in district courts, VAWA had posted seventeen wins and only two losses (including Brzonkala’s before Judge Kiser). Further, following that loss, Brzonkala’s case had won before the panel of three judges at the court of appeals, giving VAWA a victory in its first test in an appeals court.
The route to the Supreme Court took a sharp turn soon after that victory. On the three-judge panel was a dissenter, Judge Michael Luttig, who had been appointed to the court of appeals in 1991 (it then had no women). In the weeks before joining the court, while he was still employed by the Justice Department, Luttig had given Clarence Thomas, then a nominee to the Supreme Court, what amounted to a crash course in constitutional law to assure Thomas could pass tests thrown at him by Biden’s committee on the judiciary. A former clerk to Antonin Scalia (before he joined the Supreme Court) and to Warren Burger (when he was chief justice), Luttig continued working to prepare Thomas to respond to charges by Anita Hill and the ensuing debate about sexual harassment—helping Thomas through times when he wailed, as Luttig recalled, “These people have destroyed my life.” In Luttig’s judicial chambers hung a photo of Justice Thomas in judicial robes that is inscribed to Luttig: “This would not have been possible without you! Thanks so much, buddy!”
Luttig’s dissent succeeded against the case of Christy Brzonkala: his colleagues on the court of appeals agreed to rehear the case as a full court, en banc. He emerged with a victory of seven judges (including one woman) to four judges (including one woman, Judge Motz). Opening his triumphal opinion, he wrote in the voice of men who framed the Constitution, “We the people, distrustful of power,” he began, “provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves.” Here was the voice of a true believer, as Nourse once imagined, in the federalist pantheon. Here was an echo to an era when “we the people” could refer merely to males.
Judge Luttig’s triumph at the court of appeals meant that the future of VAWA—which had been upheld in every court decision except the ones written by Kiser and Luttig—would be settled at the Supreme Court. In the years after Congress passed VAWA and after two football players allegedly attacked Brzonkala, however, two important cases arrived at the Court. It would use them to shift the foundations underlying the Violence Against Women Act.
THE FIRST FOUNDATION-SHIFTING CASE was called Lopez, for the twelfth-grader, Alfonso Lopez Jr., who carried a pistol into his school and was subsequently prosecuted under a federal law known as the Gun-Free School Zones Act of 1990. Since Lopez concerned regulating guns, which the federal government had done for years, what seemed unusual was that the Act had been ruled unconstitutional by a court of appeals. That court opposed the Act based on what seemed merely a procedural lapse: Congress did not make findings that the law was based on the commerce clause—did not engage in hearings like those organized by Nourse before the Senate Judiciary Committee, which had located both the national need and the constitutional grounding for VAWA. Despite this lapse, which seemed correctable by hearings, Congress’s power to make such a law seemed solid. The Supreme Court had upheld congressional authority under the commerce clause in all cases for more than half a century.
At oral argument before the Supreme Court in Lopez, Solicitor General Drew Days began by asserting that the lower court’s “extraordinary step of invalidating an act of Congress as beyond its power under the Commerce Clause” had emerged from that lower court’s misreading of Supreme Court precedent. Justice Scalia, asking the morning’s first question, suggested that precedent could change. The Court, Scalia suggested, might be “concerned that the original understandings and structural theories that underlay the Federal system have been so eroded that that whole system is in danger.”
Following Scalia came Justices O’Connor and Rehnquist. Years earlier, after losing a case that might have limited the commerce clause, they had written together that “this Court will in time again assume its constitutional responsibility” to limit congressional action. Their questions in Lopez suggested that time had arrived.
Returning the Constitution to a limited role was part of what O’Connor had been put on the Supreme Court to accomplish. Her nomination in 1981 culminated an effort by Republican presidents to nominate not just a woman but a conservative one. This endeavor to appoint what Richard Nixon called a “strict constructionist” had involved William Rehnquist since 1969. At the Justice Department, Rehnquist had the job of creating a list of potential conservative appointees. In the process, he presented the White House with his own definition of strict constructionist: a judge who “will generally not be favorably inclined towards claims of either criminal defendants or civil rights plaintiffs.”
Nixon had the chance from 1969 to 1971 to appoint four such justices, in two pairs. Within the second pair he sought to score political points by appointing a woman, he said, “if she’s a conservative. Now if she’s a liberal, the hell with it.” Rehnquist told a reporter that he himself could not be nominated because “I’m not a woman, and I’m not mediocre.” To his inner circle, Nixon joked that maybe Rehnquist could “get a sex change.” Soon Nixon concluded he could “never,” according to his assistant H. R. Haldeman, “find a conservative enough woman for the Supreme Court.” Nixon then appointed Rehnquist, sending to the Supreme Court a justice who knew that his power followed from an aborted attempt at affirmative action.
At the start of his presidency in 1981, President Reagan shared Nixon’s problem. Most women who could become judges failed to align, as a Justice Department official put it, with Reagan’s “strict constructionist political philosophy.” Seeking a Supreme Court justice, Reagan found an exception—Justice Rehnquist’s longtime friend since their days in law school and Chief Justice Burger’s new acquaintance since their houseboat vacation on Lake Powell—Sandra Day O’Connor. In the months before her nomination in 1981, O’Connor had added to her conservative credentials. At a high-powered conference on federalism, she gave a talk that became a law review article. She proposed tactics to keep civil rights cases out of federal courts and affirmatively quoted Justice Rehnquist. She suggested leaving many such cases to the states, much as opponents of VAWA’s civil rights section years later would argue that states should handle women’s claims. O’Connor’s article, appearing soon before her nomination, signaled she was unlikely to disagree often with Rehnquist. In the decade following the passage of VAWA in 1994, they would agree in 70 percent of non-unanimous cases, making her Rehnquist’s second-most-reliable ally. During his entire career, he voted more often with her than with any other justice. Rehnquist and O’Connor both reached the Court thanks to presidents who hoped to nominate a conservative woman and restrain the liberalism of courts and Congress.
During oral argument in Lopez, O’Connor and Rehnquist asked what Congress could not do. Days declined to speculate. Scalia asked Days if Congress could enact a “Federal domestic relations law” that would govern such disputes as divorce. Scalia’s language echoed Rehnquist’s 1991 charge that VAWA could involve “federal courts in a whole host of domestic relations disputes.” As Solicitor General Days began to offer areas in which Congress had already legislated, Justice Scalia interrupted and named the area on his mind: “Domestic violence.” Apparently referring to VAWA while considering Lopez, he added with vehemence: “I’m aware.” VAWA had become law eight weeks before.
The end arrived for a half-century of congressional authority under the commerce clause when the chief justice announced the majority Lopez decision on April 26, 1995. For a 5–4 court, he declared that the Gun-Free School Zones Act violated the Constitution. After the chief’s brief announcement, Justice Breyer made the rare move of reading aloud from his dissent, joined by Justices Stevens, Souter, and Ginsburg. Speaking at greater length than the chief justice, Breyer argued that upholding the act would have been “consistent with, if not dictated by, this Court’s prior precedent” and would “simply recognize that Congress had a ‘rational basis’ for finding a significant connection between guns in or near schools and (through their effect on education) the interstate and foreign commerce they threaten.”
To justify ending the Court’s deference to Congress, Rehnquist went back to “first principles,” as he put it, and indeed to James Madison, writing in The Federalist to say that “the powers delegated by the proposed Constitution to the federal government are few and defined.” Key to Rehnquist’s analysis was his claim that the Gun-Free School Zones Act had “nothing to do with ‘commerce’”—regardless of government arguments about economic and commercial losses caused by increases in crime or decreases in educational attainment.
Rather than deny that a weakened educational system could weaken commerce, Chief Justice Rehnquist leapt beyond Lopez. He raised the twin specters that Congress might try to regulate “all violent crime” and “family law,” including disputes involving divorce and child custody. In deciding Lopez, the chief justice evidently aimed at the nascent Violence Against Women Act and what he had called, while lobbying against it in 1991, its potential to involve the federal courts in a whole host of disputes about domestic relations. His newest ally, Clarence Thomas, added that Lopez only began the Court’s backward push toward “the original understanding of that Clause.” Looking for rational findings from Congress should yield to looking two centuries back for “first principles.” If Rehnquist wanted a trap for VAWA, he now had one.
In the wake of Chief Justice Rehnquist’s decision in Lopez, Linda Greenhouse of the New York Times noted that “the Federal judiciary’s policy-making arm, which Chief Justice Rehnquist heads,” had opposed recent congressional action against crime, including what she called “household violence.” She suggested the likelihood of upcoming collisions between the Court and Congress: the “stunning decision” in Lopez, she said, offered “a forceful reminder not only of the Court’s raw power—nine people, divided 5 to 4, invalidated a law that two houses of Congress and the President of the United States approved five years ago—but also of its [the Court’s] inevitable role in shaping the country’s ongoing political dialogue.” In contrast to other commentators including the head of the Office of Legal Counsel in the Justice Department—who construed Lopez as a “relatively narrow decision”—Greenhouse linked Lopez back to past attacks on VAWA and forward to future ones.
A SECOND FOUNDATION-SHIFTING CASE, City of Boerne v. Flores, reached the Supreme Court in 1997, when congressional power under the Fourteenth Amendment met its attack in another case that seemed remote from VAWA. The case began after two members of the Native American Church, who used peyote as a sacrament, were fired from their jobs at a “private drug rehabilitation agency.” When they applied to their state government for unemployment benefits, Oregon would not pay them because they lost their jobs after breaking the law. Those laws made no exception for using a drug as a religious sacrament.
When the peyote case went to the Supreme Court in 1990, the Court sided with Oregon against the Native Americans. Writing an opinion for a 5–4 majority, Justice Scalia diverged from a long-standing test that required states to show a “compelling interest” in order to justify limits on the free exercise of religion as guaranteed by the Constitution. Widespread outrage led Congress to respond. Its response partly resembled creation of the Pregnancy Discrimination Act in 1978 after the Supreme Court declared that Congress had not intended the Civil Rights Act of 1964 to outlaw discrimination against the pregnant. What Congress drafted in response, the Religious Freedom Restoration Act in 1993, explicitly restored the compelling-interest test. No law, said the Act, may substantially burden the exercise of religion unless that law serves a “compelling governmental interest.” Congress relied on the Fourteenth Amendment’s section 5, the same section that partly supported VAWA and, earlier, such civil rights laws as the Voting Rights Act of 1965. Congressional support was nearly unanimous, with support from all but three senators and unanimity in the House. Unlike the Pregnancy Discrimination Act, however, which told the Supreme Court how to interpret an act of Congress, the Religious Freedom Restoration Act told the Supreme Court how to interpret the Constitution. Congress claimed to be exercising its Fourteenth Amendment power to “enforce” guarantees of the Constitution.
When the Religious Freedom Restoration Act reached the Supreme Court in 1997 in Boerne, the justices rejected Congress’s claim to tell the Court how to interpret the Constitution. Writing for a solid majority, Justice Kennedy rebuffed Congress’s power to define what test the Court should use to judge constitutionality.
To differentiate a law that Congress could not adopt from one that it could, such as the Voting Rights Act of 1965, Justice Kennedy in Boerne added a new test to the Supreme Court’s review of congressional efforts to enforce constitutional guarantees. When Congress legislates under the Fourteenth Amendment in order to prevent constitutional harm—such as harming the exercise of religion—there must be “a congruence and proportionality between the injury to be prevented or remedied and the means adopted” to address the injury.
The Supreme Court’s 1997 action to limit congressional power under the Fourteenth Amendment, partly by assessing “congruence and proportionality,” meant that the Supreme Court had dramatically altered American law in the three years since Congress enacted VAWA. VAWA had left Congress in 1994 with two foundations: the Constitution’s commerce clause and the Constitution’s Fourteenth Amendment. Within three years, the Supreme Court had battered both.
The undercutting of constitutional support for VAWA gave Judge Luttig grounds for both we-the-people triumphalism and an assertion that the attorneys for Christy Brzonkala knew their VAWA case had become a loser. The decisions in Lopez and Flores, he trumpeted for his court of appeals majority, had “all but preordained” their defeat. So confident was Judge Luttig that he ventured a defense of states’ powers to create a “marital rape exemption.” He defended states’ rights to protect rapist-husbands on the grounds that, although a rape exemption may represent “regrettable public policy,” such policy choices “have traditionally been made not by Congress, but by the States.” The grim joke regrettably remained: If you can’t rape your wife, who can you rape?
THE MORNING FOR THE SUPREME COURT to hear oral arguments on Christy Brzonkala’s case and VAWA began with temperatures just above freezing and a chill wind blowing. Visitors hoping to hear the argument, scheduled to begin at 10:00 a.m., arrived before 6:00 a.m. to line up on the marble plaza in front of the Court. By dawn the number of would-be spectators standing in frigid wind on the Supreme Court plaza passed sixty people. Police officers began telling new arrivals that they were too late to hear the case. Around the corner from the plaza, another line of spectators was growing inside the Court building. In this line, open only to attorneys admitted to practice in the Supreme Court, stood Sally Goldfarb. Victoria Nourse, now pregnant with her second child, could not manage the trip east from her new job as a law professor at the University of Wisconsin. Just ahead stood Goldfarb’s colleague from NOW Legal Defense, Julie Goldscheid, who would make the first of the day’s two arguments for VAWA. Gold-scheid, whose efforts for women’s rights went back to the early years of sexual harassment law when she worked for Working Women’s Institute in the basement of a church, was listening closely to last-minute thoughts from another attorney waiting in the spectator line, Professor Judith Resnik of Yale Law School. Near the line’s front stood Lynn Hecht Schafran. After the line moved and she entered the courtroom, Schafran found herself seated in the Court’s front row and facing her former professor, Ruth Bader Ginsburg. More prominently positioned in the front row was another attorney who had played a pivotal role in the creation of VAWA. Dressed in a dark suit and turning to talk with friends and allies before argument began, placed almost precisely opposite the chief justice, was Senator Joseph Biden.
To open oral argument, Goldscheid stepped forward to take the first ten minutes, to be followed by the solicitor general of the United States, Seth Waxman, also supporting VAWA. “Congress enacted the civil rights remedy of the Violence Against Women Act,” Goldscheid began, “to remove one of the most persistent barriers to women’s full equality and free participation in the economy: discriminatory gender-based violence.” With this connection of equality to economy, Goldscheid put VAWA on both of its constitutional supports: its origin in discrimination (linked to the Constitution’s Fourteenth Amendment) and its impact on the economy (linked to the Constitution’s commerce clause). She did not get far.
Justice Scalia broke in with questions: a Congress that could enact VAWA, he suggested, could also enact a “general criminal statute” against violence such as “a federal rape law or a federal robbery law, right?” The attack, echoing his earlier strategy in Lopez, met a well-prepared reply from Goldscheid. Each VAWA case, she pointed out, must show discriminatory motivation—the much-discussed animus requirement—which was typified in Christy Brzonkala’s case by her attacker’s proclamation that he “liked to get girls drunk and fuck the shit out of them.”
The animus requirement, Julie Goldscheid argued, meant that VAWA’s power under the commerce clause found limitation as well as support in the Fourteenth Amendment’s protection against discrimination. Far from a general criminal statute, VAWA was both noncriminal (it enabled a civil suit) and nongeneral (only discriminatory animus, of the sort the Fourteenth Amendment empowered Congress to combat, could permit a lawsuit).
Scalia, without acknowledging discrimination or limitation, pressed the point that VAWA might allow Congress to enact “general Federal criminal laws on all subjects because all crime affects interstate commerce” and even to “sweep away all State laws.” Far from worrying they would be swept away, Goldscheid countered, states had showed strong support for VAWA. Not only had attorneys general from thirty-eight states supported VAWA in a letter to Congress, but thirty-six had submitted a brief on its behalf to the Supreme Court. Furthermore, she argued, Congress should retain power to fight discriminatory gender-based violence because discrimination is “uniquely and traditionally an area of Federal concern.”
At this point, seven minutes into the argument, another justice entered: Sandra Day O’Connor. Her vote was one Goldscheid needed. Although attuned to arguments about discrimination, O’Connor as far back as 1981, in the law review article published shortly before her nomination, had tried to keep federal courts from taking civil rights cases that could be left to state courts. Now questioning Goldscheid, and pointing out that gender bias might be documentable in inadequate alimony for women, O’Connor wondered if Goldscheid’s theory would allow Congress to legislate in such areas as divorce—allowing new sorts of discrimination claims to reach federal courts.
As Goldscheid tried to work through O’Connor’s question, another justice broke in: what would make unconstitutional the passage, by Congress, of a general murder statute? Back in stronger territory, Julie Goldscheid drew what seemed a clear line: Without a showing of discriminatory animus, a federal murder law would fail the animus test set by the Court in Griffin v. Breckenridge. Ten minutes into the argument, her time was up. The chief justice interrupted her in mid-sentence. She ceded the floor to her ally in argument, Solicitor General Seth Waxman.
Almost as soon as Waxman began, a question from the chief justice stopped him: was the government arguing not just on the basis of the commerce clause but also on the basis of the Fourteenth Amendment? Indeed we are, said the solicitor general. Justice Kennedy stepped in to urge the solicitor general to please confine himself to the commerce clause.
Trying to save both VAWA and future congressional legislation, Waxman told the Court that its Lopez majority had authored a four-part test for future legislation by Congress under the commerce clause. Deferentially, the justices gave the solicitor general two almost-uninterrupted minutes to portray their opinion in a way that might help his case. Just as he reached his climactic point four, with which he hoped to tie VAWA to a truly federal concern—and tie back elegantly to Julie Goldscheid’s best point, that discrimination is “uniquely and traditionally” a federal worry—the solicitor general faced an interruption that he could not ignore. Sandra Day O’Connor interjected that she, too, wanted VAWA tied to a federal concern. She offered a way to make the tie: Congress could give the justices a jurisdictional hook. If justices are trying to find that legislation is constitutional under the commerce clause, she said, “the Court has been helped many times” by legislation that contains “some kind of jurisdictional hook that the conduct that took place” did so “in interstate commerce. There is no such hook here.”
She wanted a hook that VAWA could have possessed. VAWA already had a hook, attempted at least, to the Fourteenth Amendment: an attack must show discriminatory animus. Justice O’Connor apparently wanted a comparable hook to the commerce clause: an attack must, for example, make its victim unable to enter the labor market as she planned, perhaps because the attack made her unable to continue at college. Christy Brzonkala’s story embodied such hooks. Unable to study after an attack, she said, she stopped attending classes and needed to withdraw from Virginia Tech. When she learned her alleged rapist had been readmitted to the university for the start of the 1995 football season, she left the school and then moved out of state to get a job (thus moving in interstate commerce) in a bar—a lower level in the labor market than many college graduates aspire to.
Although Christy Brzonkala’s case would have attached to a hook under the commerce clause, no drafter of VAWA anticipated a need in the years before the Supreme Court used Lopez to change the rules. The solicitor general tried to argue that Congress had deliberately omitted such a hook, but his explanations opened the way to counterattacks. Justice O’Connor argued that his approach could justify creating “a federal remedy for alimony or child support.” Justice Scalia suggested that VAWA assumed the states were “bad actors.” Chief Justice Rehnquist added that problems encountered by women in state courts with “archaic stereotypes” could appear also in federal courts.
The solicitor general, forced to parry one challenge after another from the same justices whose votes in Lopez had undercut VAWA’s footing on the commerce clause, barely managed to return to the original grounding of VAWA: an effort to deliver equality that had its basis in the Fourteenth Amendment’s guarantee of “equal protection of the laws.” As the solicitor general began to discuss equality, the chief justice informed him that time had run out for his defense of VAWA.
Outdoors on the steps of the Supreme Court minutes after the end of oral argument, standing in light rain beneath an umbrella that carried the seal of the Senate, Senator Biden made (as the solicitor general could not) an argument for equality: “Men don’t choose not to take jobs” for fear of gender-motivated violence, he said, but “women do alter their life patterns.” And by countering states that fail to protect women against gender-based violence, he continued, this law “empowers my daughter and granddaughters.” The key to the survival of VAWA, he predicted, were Justices Kennedy and O’Connor. Within that building, he said, gesturing to the marble steps behind him, the justices were engaged in a “titanic struggle” to see if a bare majority would dramatically shrink the authority of the legislature elected by the people.
Less publicly, as they walked away from the Court, supporters of VAWA worried about the key question raised by Justice Sandra Day O’Connor: What about adding an explicit hook to the commerce clause in order to give the Court what she called help? The inference seemed clear. If the drafters of VAWA could help O’Connor with a hook, she could help them with a vote. But the hook and her vote could come only at some future point with a rewritten VAWA. As Sally Goldfarb rushed to catch a train from Washington back to her home in New Jersey, she wondered aloud whether VAWA’s drafters would have wanted to craft a bill narrow enough to win with this Supreme Court. She wasn’t sure.
As the day turned from drizzle back to damp wind, Christy Brzonkala stood opposite a side door of the Supreme Court and next to the Washington headquarters of NOW Legal Defense, where some attorneys and reporters had gathered. She wore a gray jacket over black pants and blouse, purchased after a friend told her that she should try to dress well for her day at the Court. Preparing to take final questions from a television reporter, she tried to draw warmth from a cup of cold coffee. With the camera off, she said she felt as if she had stayed awake for the past three nights, ever since the press conference when she had been asked to talk on an “emotional” level.
As Christy Brzonkala shivered, an NBC reporter told her that an attorney for one of her alleged assailants had suggested that she brought charges because the men allegedly involved were black. No, she said, “when a woman is raped, she doesn’t see a color. She sees an animal.”
Would Brzonkala, the reporter asked, talk about her current boyfriend? Wasn’t he an African-American? A staffer at NOW Legal Defense stepped forward saying, “You don’t have to answer that.”
“It’s OK,” Brzonkala reassured her. “I was brought up in a family,” she said to the NBC camera, where race was “no problem.” Yes, she explained, she and her boyfriend had been together two years; she had wanted him to come today, but he preferred to stay away. As she spoke, her father and mother stood within earshot. Brzonkala continued that now, living away from home with a job she liked, she felt her life had moved on.
But for a while earlier you were, the reporter asked as the camera ran, “suicidal”? Again the staffer moved to intervene, and again Brzonkala waved her off. For a “brief time,” she said, she had been suicidal. She had been trying to “figure out who I was.”
Then the newsman asked his toughest question: did Brzonkala ever feel she was a pawn? She pondered, looking taken aback. No, not really like a pawn, she said. She paused and then added, More “like a queen.” Again she looked like a tired athlete, struggling to find words after a loss.
In closing, the reporter asked, did she have anything she wanted to add? No, she said first, but then, looking game, she raised her right hand. To the camera she said, “Women rule.”
CHRISTY BRZONKALA WAS WRONG. Chief Justice Rehnquist, fearing the loss of O’Connor’s vote, had lobbied her. After a late-afternoon phone call in which she told him he had her support, he said, “Well, we got it”—his fifth vote.
In the opening paragraph of his opinion, for a 5–4 majority, Chief Justice Rehnquist named the three cases that doomed VAWA: Lopez (1995), together with Harris (1883) and the Civil Rights Cases (1883). With these cases as precedent, Christy Brzonkala and VAWA had little chance. Rehnquist buried, in mid-paragraph, a single sentence about an attack: “Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her.”
As for words that showed animus, Rehnquist cut them. What Morrison allegedly said to Brzonkala became “You better not have any . . . diseases.” Dots replaced fucking. What Morrison allegedly said later became “that he ‘liked’ to get girls drunk and . . .” The dots, said Rehnquist, replaced “boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.” Thanks to Rehnquist, readers could stay unoffended. The dots replaced “fuck the shit out of them.” The chief justice had cut animus—and animosity—against women.
What mattered most was Rehnquist’s Lopez decision, written after VAWA passed Congress. VAWA, Rehnquist now wrote, flunked the tests he had prepared in Lopez: The gender-motivated crimes of violence that VAWA fought are not “economic activity.” Congressional findings, even as numerous as VAWA’s, may be judged insufficient by the Court. Congressional drafting of VAWA provided no jurisdictional hook to the commerce clause.
Regarding the lack of that hook, the chief justice seemed to chide Congress. “Although Lopez makes clear that such a jurisdictional element would lend support to the argument that [the Violence Against Women Act] is sufficiently tied to interstate commerce,” he wrote, “Congress elected” to create a remedy for such violence that might not reach beyond state lines. Leaving unstated that he wrote Lopez after Congress wrote VAWA, Rehnquist left readers guessing whether he had designed Lopez to trap VAWA. In stopping VAWA, he held together the same bloc of Justices (Kennedy, O’Connor, Scalia, and Thomas) that had aligned in Lopez to cut back, after five decades, the Court’s consistent record of deferring to Congress in its enforcement of the commerce clause.
Four dissenting justices opposed the chief justice. The Violence Against Women Act, wrote Justice Souter, “would have passed muster” under the commerce clause in the Supreme Court at any time between 1942 (when the Court ruled that interstate commerce included growing food at home to eat at home) and 1995, when Lopez changed the rules. Noting that homegrown food had been ruled by the Court to affect interstate commerce because it could potentially affect the market for food beyond state lines, Justice Souter pointed to more direct effects of VAWA: “Supply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers, and by the reduction in the work force by the 100,000 or more rape victims who lose their jobs each year or are forced to quit.” A cost estimate by Congress for 1993, he said, reached $5 billion. He pointed to four years of congressional hearings that produced detailed findings, to the support of state attorneys general, and to evidence from twenty-one state gender-bias task forces that, he said, gave Congress a rational basis to believe that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce” that justifies creating “a federal civil rights remedy aimed exactly at violence against women.” Justices Stevens, Ginsburg, and Breyer joined Justice Souter in his failed effort to use the commerce clause to save VAWA. Until thirty years earlier, the Court had employed no more than rational-basis scrutiny in assessing legislation that hurt women. Now it was giving harsher scrutiny—asking Congress to have more than a rational basis—to reject laws passed by Congress to help women.
CHIEF JUSTICE REHNQUIST’S UNDERCUTTING of the commerce clause left VAWA with a last leg to stand on, its inspiration from the days in 1991 when Victoria Nourse began her research in the Library of Congress. Her earliest drafting grounded VAWA on the Fourteenth Amendment, passed soon after the Civil War, which guaranteed that a state could not “deny to any person within its jurisdiction the equal protection of the laws.”
As if toying with Nourse’s inspiration, Chief Justice Rehnquist began by recalling the broad power granted to Congress by the Fourteenth Amendment to enforce that guarantee of equality. He then recalled the two civil rights acts of the 1870s against which the Supreme Court ruled in 1883: the Civil Rights Act of 1871, the so-called Ku Klux Klan Act, enacted by Congress to end the widespread slaughter and intimidation of black citizens by white gangs across wide regions of the South; and the Civil Rights Act of 1875, enacted to overcome white resistance to granting blacks equal access to accommodation such as inns and to transportation such as railroads.
Rehnquist aligned the origins of the civil rights acts in the 1870s with the origins of VAWA in 1991. “There is abundant evidence,” he wrote, “to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting [VAWA]: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination.” Rehnquist aligned also with Nourse’s argument, which she had drawn from studies of gender bias: when it came to violence against women, some state laws and some state courts delivered inequality of treatment.
Adding historical depth, Chief Justice Rehnquist quoted congressmen who in the 1870s had supported civil rights. Representative James A. Garfield argued for federal civil rights legislation on the grounds that some states—even those “where the laws are just and equal on their face”—deny citizens equality through a mix of “systematic maladministration” of the laws or a “neglect or refusal to enforce” those laws. Senator Charles Sumner, author of the Civil Rights Act of 1875, which he died fighting for, condemned state courts for failure to enforce state legislation that mimicked federal civil rights laws but amounted to merely “a dead letter.”
The alignment of VAWA with these civil rights acts, said Chief Justice Rehnquist, did not help VAWA. It hurt VAWA. The 1871 Act reached the Court in 1883 when R. G. Harris challenged it for empowering federal law enforcement officials to arrest “private persons” for “conspiring to deprive any one of the equal protection of the laws enacted by the State.” Chief Justice Rehnquist, without explaining that Harris had led a lynch mob, which killed a black man after pulling him from custody in a Tennessee jail, said that “we concluded” in 1883 that the Fourteenth Amendment did not empower Congress to resist the discriminatory “action of private individuals.” (Perhaps only a justice of the Supreme Court can say, without irony, that we reached our conclusion twelve decades ago.)
“We reached a similar conclusion,” continued the chief justice, in repudiating the effort by the Civil Rights Act of 1875 to desegregate America’s hotels, theaters, railway cars, and similar places where people gather. The so-called Civil Rights Cases of 1883, he said, removed authority from Congress, under the Fourteenth Amendment, to attack “purely private” discrimination. He did not say that those later cases gave support to the anti-black laws of the Jim Crow era. Both cases of 1883 helped establish the view that the Fourteenth Amendment, as Rehnquist stated, “prohibits only state action.”
Briefly he raised a contrary view, expressed by optimistic legal analysts and some of his fellow justices, that a consensus had emerged on the Supreme Court that its anti-civil-rights cases of the 1880s had been wrongly decided: that its wrongful crippling of the civil rights acts and thus of the Fourteenth Amendment could be viewed as one of its nineteenth-century errors, committed in a time of racism and national depression. Despite the lingering of the so-called state-action requirement, epitomized by the Court’s 1883 ruling in Harris that federal prosecutors could combat only a lynch mob that received support from the action of state officials, those old cases seemed moribund. By one measure of currency, the legal citation service known as Shepard’s, not since 1913 had a majority of the Supreme Court explicitly followed either Harris or the Civil Rights Cases.
Going directly against assertions that the decision in “the Civil Rights Cases is no longer good law,” in his VAWA opinion of 2000 Chief Justice Rehnquist re-entered a legal battle in which he had earlier made the case—in his 1952 memo defending the 1896 Plessy case and its separate-but-equal doctrine—for what seemed the losing side of segregation. To redefine that battle, he now sought to divide and conquer the six justices who had sought, in the Guest case of 1966, to inter those embarrassing cases of 1883.
Attacking Justice Brennan while he attacked VAWA, Chief Justice Rehnquist worked against Brennan’s 1966 argument that, as Rehnquist put it, “the Civil Rights Cases were wrongly decided” and that Congress thus retained the power under the Fourteenth Amendment to “prohibit actions by private individuals.” Rehnquist countered that Brennan had the support of only three justices. The other three whom Brennan claimed as supporters, said Rehnquist, agreed on mere dicta—a judge’s opinion that is not a legal opinion. Rehnquist did not quote at length from their opinion, written by Justice Clark on behalf also of Justices Black and Fortas. Clark, after noting that the Court in Guest had avoided the question whether Congress has the power to punish private action, and after opposing the inference that avoidance signaled agreement, went on to conclude with “no doubt” that the Fourteenth Amendment “empowers the Congress to enact laws punishing all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights.”
Although the combined writings of Brennan and Clark had produced what observers of the Court including Brennan saw as a majority of six votes in support of civil rights, now Rehnquist chose to portray them as merely two groups of three votes that failed to total six. With his five votes, Rehnquist resurrected the almost-buried judgments of the Supreme Court of 1883. That old Court’s decisions to eviscerate the civil rights acts of 1871 and 1875 were “correct,” he said. Those decisions doomed the civil rights section of VAWA.
As he revived the ill-named Civil Rights Cases, Rehnquist made no effort to inter the language of their author, Justice Joseph P. Bradley. Writing in 1883, Bradley demeaned recently freed blacks as “the special favorite of the laws.” Blacks should be protected, said Bradley, not specially but only by “ordinary modes.” He did not mention that lynching of blacks had become, itself, an ordinary mode.
Justice Bradley, a decade before he suggested how to protect blacks, had suggested how to protect women: men would protect women. Before terminating the Civil Rights Act of 1875, Bradley had written the following as he helped terminate a different quest, that of Myra Bradwell to become a lawyer:
Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belong to the female sex evidently unfits it for many of the occupations of civil life.
Man should protect woman, Bradley helped determine for a unanimous Supreme Court, from occupations such as practicing law. This was the decision that Ruth Bader Ginsburg, in her first Supreme Court brief of 1971, had referred to as “old debris”—overdue for clearing away by the Court but too petty to merit critique. Man should defend woman, Bradley added, because the “paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”
So ended the decade-long quest to create a civil rights law prohibiting violence against women—impaled on an opinion by a long-dead justice who had invoked his Creator to close the profession of law against women. So ended also what Joseph Biden viewed as the most important section of a bill that represented his “single most important legislative accomplishment.” Although a ninteenth-century justice’s stricture on women seemed mere debris to Ruth Ginsburg in her younger days, now his restriction on civil rights loomed large.
For Christy Brzonkala, some vindication came, but only in small forms. Even before her case reached the Supreme Court, she learned that one of the men whom she said attacked her, James Crawford, had been arrested with another football player on the charge that they raped a female student in their apartment and had been suspended by the college. He later, though denying guilt, accepted a one-year suspended sentence and admitted the prosecution had sufficient evidence to convict him for aggravated sexual battery. Soon after oral argument at the Court, Brzonkala settled a case for discrimination against Virginia Tech, which paid her $75,000 while denying all wrongdoing. For VAWA, however, vindication was scant, except in a few regions that began drafting local laws modeled on VAWA’s civil rights section.
States’ rights, refashioned as federalism, had trumped women’s rights. National commerce had trumped women’s safety. Chief Justice Rehnquist, who had once written in support of segregation—of Plessy and its separate-but-equal doctrine in his early days at the Supreme Court when just a clerk—now as a chief justice managed to revive cases from before Plessy that had helped keep blacks less than equal to whites. Resurrecting those cases with a one-vote majority, he stripped away congressional power to protect women from violence and perhaps do other work for the nation. The Supreme Court, as ever mostly male, closed the twentieth century by reaffirming a nineteenth-century justice who claimed blacks were the law’s favorites and women were protected, thanks to the Creator, by men.