· CHAPTER 17 ·
“I Cannot Agree”
The new century did not begin auspiciously for the Ginsburgs. Ruth was ill in the summer of 1999 when the couple left the island of Crete, where they had been teaching. Subsequently diagnosed with colorectal cancer, she recovered from surgery sufficiently to be back at the Court for the opening of the October term. But the dread disease, which had taken Celia’s life and nearly cut short Marty’s, was taken seriously in the Ginsburg family.
Radiation and extensive chemotherapy followed, reducing the weight of the diminutive justice, who at her heftiest had barely weighed a hundred pounds, to the point that she looked as though a strong breeze might lift her aloft. While Marty prepared dishes that would tempt his wife’s palate, Chief Justice Rehnquist eased her workload. Justice O’Connor, who had successfully battled breast cancer during the 1988–89 term, offered welcome advice on scheduling chemotherapy so that the worst side effects would not coincide with days she needed to be at Court. The advice, plus her own fierce determination to carry on, enabled Ginsburg to attend every single conference meeting during her painful chemotherapy regime. Coping with the nausea, other discomfort, and extensive fatigue sufficiently to be present at Court was a particular point of pride.
By November, she could look forward to the unveiling of her portrait that would hang in the Supreme Court. At least this was a much better likeness than the severe expression captured in the one for Columbia Law School, which she had asked to be taken down and stored. The ceremony, held at the D.C. Court of Appeals, would also provide a reunion with all her clerks as well as friends who had been asked to speak at the ceremony. Eschewing the elegant outfits Marty helped choose for their many embassy dinners as well as her usual well-tailored suits, she chose clothes more suitable for a patient recovering from surgery—a loose-fitting jumper and flat Mary Jane shoes.
With her good friend and former colleague Judge Harry Edwards presiding, the event began with witty and affectionate words from a man who identified himself as the person least likely to be expected to be paying tribute to Ruth Bader Ginsburg. “She’s never going to make me a feminist,” Scalia proclaimed. But he went on to praise the colleague who he had often claimed would be the one person he would want as company if he were marooned on a desert island. The wit and charm of his tribute proved a hard act to follow. Deborah Merritt spoke warmly and effectively for the many clerks seated in the front rows across the middle section of the court. Ruth’s longtime friend and co-author Herma Hill Kay from Berkeley ably covered Ginsburg’s career.
And Kathleen Peratis, a devoted ally during the ACLU years, spoke revealingly of the woman who spearheaded the Women’s Rights Project and the deep ethical imprint that Judaism had left upon her. Though the honoree would later quibble about Peratis’s focus on Judaism’s influence, the celebration had lifted her spirits. But the same could not be said of developments on the equality front.
Racial and gender justice, long linked, had inevitably become a hit-and-miss affair since the rightward-bound mid-1970s. It was then the Court ruled that to establish an equal protection violation, there had to be proof that the state acted with discriminatory intent in statutes that appeared on the surface to be race or gender neutral. “The result for women,” noted a distinguished legal scholar, “has been to leave vast chasms of gender inequality unredressed in areas that ‘ha[ve] always been’ state law.” Two new legislative initiatives, enacted during the Clinton years, had been designed to lift barriers that prevented women from competing as equals. The second now hung in jeopardy.
Passage of the Violence Against Women Act, or VAWA as it was commonly called, had not come easily. Sexual violence, whether in the form of rape, wife beating, or incest, had been transformed from a matter of private shame to an issue of public policy by radical feminists in the 1970s. Mustering evidence that these were not isolated acts attributable to lust or intoxication, younger feminists identified them for what they were—assaultive acts of power that crossed markers of nation, class, race, and ethnicity. They needed to be taken seriously. But despite their efforts, enduring cultural attitudes proved hard to change. By the end of the 1980s, U.S. statistics staggered. Every fifteen seconds, a woman was beaten by her husband or boyfriend. Every six minutes, a woman was forcibly raped. One-fifth to one-half of American women had been sexually abused as children, most by an older male relative. One out of every eight adult women in the United States—at least 12.1 million—had been a victim of forcible rape. Female college students remained especially vulnerable. Even in 2014, one of every four was sexually attacked before graduating, and one in seven raped—statistics that showed no sign of diminishing. Since 1974, the rate for rapes had risen nearly four times faster than the national crime rate. And despite changes in rape law in the 1970s and 1980s, reporting, arrest, and conviction rates showed no detectable improvement. The rate for assault and other violent crimes against women also rose dramatically, while the rate for the same crimes against men dropped. Similarly, the murder rate for women aged sixty-five or older had climbed by 10 percent, while it fell in the same age-group for men by 4 percent.
Though men and boys were also victims of sexual violence, the data indicated that women and girls were targets for certain types of violence precisely because of their sex. Millions of women, therefore, lacked the physical security and freedom to compete as equals in an economy in which they could expect to be wage earners and often single parents for much of their adult lives.
For Senator Joseph Biden, the issue had become personal. His wife, Jill, took courses for her graduate degree at night. When he suggested that she park in an illegal space because it was safer, she exploded with frustration at the way women’s lives are governed by fear of violence. Soon after, a man with a hunting rifle walked into a university classroom in Montreal, divided the students by sex, yelled that the women were all “a bunch of feminists,” and killed fourteen of them. Aware of the senator’s feelings about such needless tragedies, Ron Klain, who had moved from the White House counsel’s office to become Biden’s chief aide, handed the senator an article from the Los Angeles Times connecting the Montreal murder of “feminists” to a gap in U.S. law. Federal law tracking hate crimes targeted only a “victim’s race, ethnicity, religion, or sexual orientation.” Thus, “if a woman is beaten, raped or killed because she is a woman, this is not considered a crime of hate”—a legal loophole “welcome to no one but the misogynist.”
Impressed, Biden promptly sent another young staff lawyer, Victoria Nourse, to the Library of Congress to figure out what Congress could do. Start by looking at the issue of marital rape, he instructed, a social problem he had tried unsuccessfully to address a decade earlier. Nourse returned with information that shocked them both. Some states, including Delaware, had extended the marital-rape exemption to become a date-rape exemption, downgrading a “rape charge if a woman was a man’s ‘voluntary social companion.’ ” Biden was even more troubled by this modification in policy, because he and his wife were raising a young daughter in Delaware. Convinced that state action had proven inadequate, Biden reached out to feminist groups and NOW’s lead lawyer, Sally Goldfarb, who in turn called Catharine MacKinnon. “If Biden wants to do something for women,” MacKinnon responded, “he should recognize rape and battering as federal sex-discrimination claims.”
Senator Joseph Biden formulating a bill to make violence against women a federal offense, 1994.
After weeks of hard work, Nourse, following MacKinnon’s instructions, found inspiration in the Civil Rights Acts of 1871 and 1875. Designed to reduce Klan violence and civil rights violations against newly freed slaves, both statutes empowered the federal government to prosecute individuals who infringed on the rights of others. Though much of the legislation had been subsequently gutted by a reactionary Court, one part of the 1871 act survived: giving injured parties the right to sue violators in federal court. Nourse had her key. She could target gender-motivated violence by giving victims the right to sue their attackers for damages in civil court.
The first VAWA bill came to the Senate on June 19, 1990, with the overwhelming endorsement of attorneys general from states across the Union. For Biden and his staff, the great surprise came not when grateful women stopped him on the street to tell him their stories but when his civil rights initiative received almost immediate resistance from the chief justice. As the head of the federal court system, Rehnquist had ordered a financial impact study, assessing the potential cost of new legislation. The study, which had assumed that a shockingly high rate of women would sue, claimed that more than fourteen thousand new cases would be added to the federal caseload at a cost estimated to be three times greater than the costs for cases brought under the Civil Rights Act of 1991.
Rehnquist further tipped his hand in 1991, appointing a gender-balanced committee of four judges to assess the bill and report to the Judicial Conference of the United States, which he, as chief justice, chaired. After conferring with Nourse and Biden, the committee reported that they would work together to tighten the civil rights portion of a bill so as to secure a more realistic impact assessment. But that was apparently not what Rehnquist wanted. According to Judge John F. Gerry, the committee was to convince Congress of the bill’s negative impact on the caseload of the federal courts. Judge Gerry’s personal view was that with VAWA’s passage the federal courts would be turned into domestic violence courts, creating “chaos.”
Such a forecast seemed widely at odds with Biden’s reassurances to the committee. But Judge Gerry’s understanding of Rehnquist’s intent proved correct. The chief, in his year-end report to the Judicial Conference, opposed any congressional addition of work to his courts unless it was “critical to meeting important national interests.” Combating a continuing pattern of violence against women apparently did not qualify. In a speech to the American Bar Association, Rehnquist acknowledged that he was lobbying Congress against passage of VAWA. He urged the ABA to reconsider the measure as well.
If Rehnquist could sway the ABA, Biden worried that congressional support for VAWA might evaporate. Trying to interpret an intent (that federal courts would replace state courts as adjudicators of domestic relations cases) when it had been directly rejected by a bill’s sponsor was bad enough in Biden’s view. To do so before full debate had even occurred in both houses of Congress struck the senator as totally unacceptable.
Never known for his reticence, Biden fired back before the House Subcommittee on Crime and Criminal Justice, directly accusing Rehnquist of misreading the civil rights section as an invitation for women to flood the court with suits. Biden protested, “You cannot establish a cause of action under this bill by saying that, ‘I am a woman; I have a bruise; ergo, I have a civil rights claim’—as the Chief Justice would lead you to believe.” The senator then rebutted the claim that the civil rights remedy in Title III of the bill covered random crimes, pointing out that it applied only to those motivated by gender.
Looking for a counterweight, Goldfarb and her coalition leaders turned to the National Association of Women Judges. Its members, a moderate lot, were keenly aware of sexism and the problem of domestic and sexual violence. Goldfarb found the perfect liaison in Lynn Hecht Schafran, then a top official at Legal Momentum, NOW’s legal arm, and a Ginsburg protégée with distinguished credentials. When prominent female judges failed to persuade the ABA’s Judicial Administration Division not to oppose VAWA, Schafran knew just the woman on the ABA’s Board of Governors who might be able to save the day.
Brooksley Born, a staunch feminist and partner at Arnold & Porter, was long familiar with ABA politics. After hearing her fellow board members (all men) assent to the Administrative Division’s report opposing VAWA, she succeeded in getting the matter before the full ABA House of Delegates. She explained that if the House passed the Administrative Division’s resolution, the ABA would be on record as opposing civil rights legislation for the first time. Violence against women is endemic, she continued. The ABA must not urge the federal courts to close their doors. Her strategic plea carried the day.
Even with this small triumph in the ABA, the heavily male Judicial Conference remained opposed. Fortuitously, the gender-based committee had a new chair, Judge Stanley Marcus. Marcus, a Harvard Law graduate and a former Florida prosecutor, received a thorough and efficient briefing on the bill from Judge Mary Schroeder, who sat on the Ninth Circuit Court of Appeals, and the law professor Judith Resnik. Marcus and Schroeder worked with Nourse and Goldfarb to reshape the civil rights provision in ways that would assure the Judicial Conference that federal courts would not be overburdened. Fearful that the phrase “gender-based crime of violence” was too broad, they returned at MacKinnon’s urging to “invidiously discriminatory animus,” a phrase in the 1871 Ku Klux Klan Act that allowed the now-freed slaves to sue white attackers for violating their civil rights if they could show an attack was motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Using “animus” (meaning extreme prejudice) provided a way of linking VAWA to the civil rights language of the Reconstruction era and the promise of the Fourteenth Amendment.
After nine hearings, a number of Senate Judiciary Committee investigative reports, and unwanted judicial interventions in what was the legislature’s prerogative, the bill was reintroduced in the Senate in 1994. It made rape and domestic abuse a federal crime. It also made hundreds of millions of dollars available to local governments to help enforce their own sexual assault laws, as well as to aid victims. The provision, titled “Civil Rights for Women,” allowed victims (male as well as female) of gender-motivated violence to sue their attackers in federal court for monetary damages, including punitive damages, irrespective of whether the offense had resulted in criminal charges, prosecution, or conviction. The bill also stipulated that federal courts had no jurisdiction over divorce or domestic relations cases—a matter on which Biden had assured critics from the outset. Relief under the civil rights remedy would be available only to those who were victims of a felony under state or federal law, not to all victims of sex-based violence—a significant limitation. And the plaintiff had to prove that the crime was due, at least in part, to animus based on gender (the social meaning of sex).
For Christy Brzonkala, VAWA’s passage in September 1994 seemed opportune. Just eighteen, she arrived at Virginia Tech that fall. She had scarcely finished freshman orientation when two members of the varsity football team, Antonio Morrison and James Crawford, entered her dormitory and, when she declined their advances, pinned her down and raped her—Morrison twice, Crawford once. Feeling as if “her soul” had been “torn out,” Brzonkala stopped attending classes and attempted suicide. While a Virginia Tech–licensed psychiatrist gave her antidepressants, no representative from the university had made more than a cursory inquiry as to why she needed treatment. Withdrawing from school, she made no charges until she returned to campus in early 1995. At a disciplinary hearing, Morrison admitted to sexual contact despite Brzonkala’s objections. The university’s Judicial Committee found Morrison, who boasted in the dormitory dining room that he “liked to get girls drunk so he could fuck the shit out of them,” guilty of sexual assault and suspended him for two semesters. Crawford was acquitted. But for Brzonkala, the ordeal was far from over.
Morrison announced that he intended to challenge the verdict, in part because the Sexual Assault Policy had not been included in the 1994 Student Handbook. The university had already successfully defended itself in a similar case. Nevertheless, two female employees made the four-hour drive to Brzonkala’s home that summer to convince her that it was technically necessary to have a hearing under the existing Abusive Conduct Policy. Student witnesses supporting Brzonkala’s testimony had scattered over summer break. Further complicating matters, the university denied her access to the audiotape and other records while granting Morrison’s lawyers full access.
Again sentenced to two semesters of suspension for misconduct, now described as “use of abusive language,” Morrison appealed to higher officials at Virginia Tech who failed to notify Brzonkala. The provost found Morrison’s sentence “excessive” compared with other cases and annulled it, thereby allowing him to return to campus in time for football season on a full athletic scholarship, as his coaches hoped. (Virginia Tech’s football team ranked eighth in the country in 1995.) When Brzonkala learned in the newspaper of Morrison’s plan to return, she again withdrew.
At no point in these proceedings did the university report Brzonkala’s charges to the police. Rape, in fact, was the only violent felony that Virginia Tech did not automatically report. Although Brzonkala ultimately filed charges against Morrison and Crawford, the Montgomery County grand jury did not indict the two men. So in December 1995, Brzonkala, who had been recruited to the university as a student athlete, sued Virginia Tech for sex-based discrimination under Title IX of the Education Act, which mandated equal treatment in educational institutions receiving federal funds, including college athletics. She also sued Morrison and Crawford under VAWA.
Both suits, filed by lawyers from feminist groups and the Justice Department in federal district court in Roanoke, landed on the desk of Judge Jackson L. Kiser. The conservative states’ rights champion, bent for so long on preserving VMI for men, would now rule on Brzonkala. True to form, Judge Kiser dismissed the suit against the university. The fact that Virginia Tech wanted Morrison back on its winning football team was not evidence of gender discrimination, he ruled. Nor was the university’s failure to notify the police of the reported rape. Sensitivity to the feelings of rape victims, rather than bias, appeared to Judge Kiser to be the more appropriate explanation for Virginia Tech’s inaction. Rejecting Brzonkala’s claim that the institutional environment was a hostile one for her, Kiser seemed to suggest that she only feared that the environment “might become hostile in the future.” As he read her complaint, no discrimination on the basis of sex had even been alleged.
However, when he turned to Brzonkala’s case against Morrison and Crawford, Judge Kiser was surprised. Taking into account Morrison’s lack of prior knowledge of the victim and his disparaging comment that she had better have no “fucking diseases,” Kiser ruled that the assault had been a form of gang rape. It fit the wording of the civil rights provision of VAWA.
But then he turned to the constitutionality of the statute. He first cited United States v. Lopez (1995), a case in which the Court ruled that Alfonso Lopez Jr., who had walked into his San Antonio high school carrying a concealed weapon, could not be convicted under the Gun-Free School Zones Act, because Congress lacked authority for passage of the act under the commerce clause. Following the Court’s reasoning in Lopez, Judge Kiser held that if a law banning firearms in a school zone went beyond Congress’s power to regulate commerce, then surely rape was beyond the scope of the commerce clause as well. Nor, according to Kiser, could VAWA be sustained under congressional power to enforce the Fourteenth Amendment after a recent (1997) ruling in City of Boerne v. Flores that introduced a new test for deciding whether Congress had exceeded its Section 5 power to enforce the equal protection clause. Her case dismissed without trial, Brzonkala’s pleas for justice had been denied.
Her lawyers appealed, as did lawyers for Morrison and Crawford. Briefs to the Fourth Circuit supporting appeals signaled the forces arrayed on both sides. Among those challenging the constitutionality of VAWA were the National Association of Criminal Defense Lawyers, conservative legal groups such as the Claremont Institute, the Center for Individual Rights, Phyllis Schlafly’s Eagle Forum Legal Defense Fund, and the libertarian Cato Institute. VAWA supporters submitting briefs included the U.S. solicitor general, attorneys general of thirty-six states and Puerto Rico, Senator Biden, liberal legal scholars, international law scholars, human rights experts, organized labor, and a long list of women’s organizations.
When the Fourth Circuit panel announced its ruling, Brzonkala enjoyed a fleeting victory. Two of the three judges held that the rapes themselves constituted a “hostile environment” and reinstated her claim against the university as well as her claims against Morrison and Crawford. Also agreeing on the validity of the statute, they held that Congress had sufficiently established the impact of gender-based crimes on interstate commerce with respect to lost work, lost productivity, lost mobility, and medical and other expenses. But after a strong dissent from the third member of the panel, Judge Michael Luttig, the conservative Fourth Circuit voted to take the case en banc, meaning all eleven judges would review the case.
This time, Brzonkala lost. While acknowledging that Congress had some latitude to act, the majority ruled that legislators had gone too far. Refusing to see women as active participants in the marketplace, the Fourth Circuit said that violence against women had only “an attenuated and indirect relationship with interstate commerce.” (Never mind the future loss of wages represented by Brzonkala’s decision to drop out of college.) Of far greater concern to the majority was the rationale used for VAWA, which could confer federal jurisdiction on other areas previously reserved to the states. Palpable throughout the decision was not only the issue of states’ rights but the old specter that Schlafly had summoned up in the campaign against ratification of the ERA and that opponents of women’s suffrage had used nearly a century earlier—the long arm of the federal government reaching into the family.
NOW’s Legal Defense Fund, which represented Brzonkala, appealed, as did the Clinton administration. By the time the Supreme Court granted review, the case had become a cause célèbre.
Ginsburg was worried. While VAWA had survived the test in other federal courts, both Rehnquist and Scalia had raised the specter of congressional regulation of “family relationships” under the guise of regulating “violent crime” in deciding the constitutionality of Lopez, the case cited by Judge Kiser. Despite a strong minority dissent, Lopez marked a dramatic reversal in Congress’s power to legislate under the commerce clause. The Court’s more right-leaning members had moved ahead on other decisions, carving out new immunities for states designed to limit the reach of federal policy. With both constitutional anchors for VAWA now weakened after a 1997 ruling in City of Boerne v. Flores, Ginsburg knew that the one vote determining its fate would be that of O’Connor. An ally on other gender-equality issues, the former Arizona legislator was a staunch new federalism advocate who believed that Congress should not address social problems that the states had fumbled.
On a cold, wintry January morning, lines began to form before dawn in front of the Court long before the doors opened to the public at 10:00 a.m. Meanwhile, members of the bar entered through a side entrance: NOW’s Julie Goldscheid, who would make the first of the two arguments for VAWA, Sally Goldfarb, Victoria Nourse, Judith Resnik of Yale Law School, who, with Judge Schroeder, had worked so hard to provide Judge Stanley Marcus with the insight he needed to salvage the civil rights provision, and, not least, Senator Biden, who took his seat almost opposite Rehnquist.
Allotted the first ten minutes, Goldscheid argued that Congress was addressing “one of the most persistent barriers to women’s full equality and free participation in the economy.” Scalia immediately interrupted, dominating the questioning. Under her justification of VAWA’s constitutionality, what, he asked, would prevent Congress from enacting a general crime statute on murder, rape, and robbery that would preempt state laws? Goldscheid reiterated that VAWA supplemented rather than usurped state authority; that attorneys general from thirty-six states had requested help; that the civil rights remedy was a response to discrimination, traditionally a matter of federal concern; and that the statute specified that traditional areas of state concern such as divorce, child custody, and equitable property distribution were left undisturbed.
O’Connor observed, “Well, presumably Congress could also, under your theory at least, legislate in those areas, too. If there’s a bias against women and they’re not receiving adequate alimony or it’s not enforceable in court in the states, then it would have an effect on commerce. Would it not?” When Goldscheid began answering, Ginsburg jumped in to help out. “Make it just an alternative forum as here. You can bring your property distribution claim in state court or in federal Court….But the case for marital distribution would also be based on discrimination, that is, a documented legislative history that shows that women are getting the short end of the stick in marital property distribution.” But Ginsburg’s intervention did not reassure O’Connor. Neither did Solicitor General Seth Waxman’s emphasis on the importance of preventing perpetrators of domestic violence from crossing state lines or violating state protective orders. Scalia was having none of it.
When Michael E. Rosman, a litigator for the conservative Center for Individual Rights, took over, he, too, focused on the commerce clause. Unyielding in his insistence that Lopez precluded any regulation of noneconomic activity, he argued that VAWA’s civil rights provision lacked constitutional backing. An exasperated Ginsburg asked Rosman if he was challenging Congress’s evidence that violence impeded women’s economic mobility in the jobs that they could take and the times of day that they could work. He responded, “I’m not sure that Congress had any basis for believing it.” Souter pressed hard to get Rosman to acknowledge that any part of the $3 billion drain on the economy created by medical expenses and lost wages could be attributed to animus-based violence. But Rosman refused. Interpersonal violence, he insisted, had always been left to the states—a claim that harked back to a time when slavery was considered a matter of interpersonal relations free from federal intervention.
Outside the Court next to the Washington headquarters of NOW Legal Defense, reporters stood around a shivering Christy Brzonkala and her lawyer, Martha Davis. Told that an attorney for one of her alleged assailants had suggested that her charges had been racially motivated, Brzonkala responded with an emphatic no. “When a woman is raped, she doesn’t see a color.”
Everyone knew that when the justices met in conference, O’Connor’s vote would be decisive. The chief lobbied his longtime friend and law school classmate in a telephone call. States’ rights trumped women’s rights for the former Arizona legislator.
Rehnquist authored the majority opinion. Writing in broad strokes and employing reasoning that is sometimes difficult to follow, he rejected each of the two sources of constitutional authority on which Congress had relied. Not once were women mentioned other than Brzonkala, who, according to Rehnquist, claimed to have suffered “a brutal assault.” In describing the assault, however, he omitted Morrison’s language conveying animus—words too odious apparently to be in a Supreme Court opinion. Brzonkala’s remedy, if she were to have one, according to the ruling, “must be provided by the Commonwealth of Virginia.” The irony that she had already exhausted that option was not lost on the dissenting justices.
Rehnquist ignored entirely what Justice Souter referred to as the “mountain of data” that Congress had collected showing the effects of violence on interstate commerce (which the gun-free law challenged in Lopez had lacked). Also ignored was a 1960s civil rights precedent in which the Court upheld under the commerce clause a statute outlawing racial discrimination in public accommodations based on evidence that had been largely anecdotal, as the dissent would point out. Instead, the chief cautioned that if the Court did not draw a line tightly between economic and noneconomic activity, Congress could enact legislation against other crimes of violence. The distinction between federal criminal law and the police power of the states would then be obliterated, as would be the states’ control of domestic law.
Christy Brzonkala and her lawyer, Martha Davis, after oral arguments in United States v. Morrison, 2000.
But there was much that this slippery-slope reasoning failed to explain. Just how were states threatened by a federal law that (1) was supported by thirty-six states, (2) duplicated no state law, (3) provided federal funds to the states to help state law enforcement, and (4) provided merely a supplemental civil option while leaving state criminal remedies intact?
Then the chief justice turned to Congress’s power under Section 5 to enforce the guarantees of the Fourteenth Amendment. Reaching back to discredited Reconstruction-era precedents when a conservative Court had thwarted a more equality-minded Congress on racial matters, he concluded that the amendment applied only to state action. If state officials were failing, they should have been the object of VAWA, the ruling concluded.
Given the Rehnquist majority’s utter lack of deference to Congress, the outcome in Morrison was close to inevitable. Writing for the dissent, Justice Souter charged that it was the majority that had overstepped, not Congress. The business of the courts was simply to determine whether Congress had a rational basis for its actions. Souter then devoted three pages of his dissent to highlighting congressional findings, demonstrating Congress’s rational basis for action. Never denying the importance of federalist principles, he employed history, precedent, and legal logic to dismantle the majority’s reasoning. Breyer, adding an additional dissent, identified key deficiencies in the majority’s Section 5. “Why,” he asked, “can Congress not provide a remedy against private actors?” Although the text of the Fourteenth Amendment refers to states, the Congress that enacted the amendment clearly intended its passage to ensure the constitutionality of federal legislation against private as well as state acts that deprived citizens of equal rights on the basis of racial bias.
Breyer’s point was strongly supported by scholars of Reconstruction. Indeed, much of the unremediated violence directed against freed slaves, the impetus for the amendment, was sexualized and directed at African American women as well as men. The white men who in 1886 stripped, tied up, and then brutally raped Rhoda Ann Childs with a pistol because her husband served in the Union army, like those who attacked the wife and daughter of a black Georgia Republican leader, were assaulting African American women as a way of retaliating for the actions of their spouses. It was non-state actors who inflicted the violence. Congress, in order to deal with problems that former Confederate states did not adequately address, devised appropriate legislation in the Civil Rights Act of 1871 and the Civil Rights Act of 1875. However, as white citizens, northern and southern, moved to sectional reconciliation and white supremacy a decade later, the Court overturned the Civil Rights Act and other laws designed to secure some measure of racial equality. By curtailing Section 5 power, states thus regained the authority to legislate on citizen-to-citizen equality rather than permitting the federal government to give that power to harmed individuals to enforce themselves through civil suits. It was no accident that Rehnquist had drawn on precedents from the 1880s rather than the 1870s.
From the viewpoint of distinguished legal scholars such as Harvard professor Laurence Tribe, the ruling was a strong expression of judicial supremacy. “ ‘The court applied its own meta-test’ to the legislative record,” Tribe explained in an interview. “We don’t care what the findings are, if accepting them endangers our vision of state sovereignty, our view of the architecture of our system.” That test applied “even when the states are basically willing bystanders.” “This decision,” Biden added, “is really all about power: who has the power, the court or Congress?”
Others, such as Catharine MacKinnon, saw something more troubling in this new federalism—how it served the older ghost of racial and sexual terrorism. Setting her powerful dissection of the ruling against the historical backdrop of racial subjugation and federalism, MacKinnon pointed out that the states had done the least to protect African Americans’ freedom and rights of citizenship. Making the states the sole avenue for women’s equality repeated history. But this time it was all women, not former slaves, whom the courts had abandoned. Morrison, MacKinnon maintained, was a major battle in women’s struggle for equality: a battle over the structure of the Union and the status of the sexes in civil society. It addressed ground zero for citizenship—physical security—and ground zero for women’s human status: sexual inviolability. “At stake was nothing less than whether women are full citizens and full human beings: equals.”
With customary brilliance, MacKinnon restored women’s full citizenship to the center of the case, where it belonged, chiding the minority for not having done so sufficiently. According to MacKinnon, “Not one member of the Supreme Court argued that the rights the VAWA gave women were constitutional under the equality guarantee.” She also raised—and answered—a fundamental question: Whose interest did the majority’s notion of federalism serve?
That question would assume historic proportions in an election year like no other.
Catharine MacKinnon, noted feminist, legal scholar, and strategist, who in 1979 established the legal claim that sexual harassment is sex discrimination.
Neither Governor George W. Bush of Texas nor Vice President Al Gore, the leading contenders, generated great popular enthusiasm during the presidential campaign. Many voters had soured on politicians generally. Others, including some liberals, saw little difference between “Gush” and “Bore,” despite their sharply divergent positions on future nominations to the Court. (Bush promised nominees cut from the same cloth as Scalia and Thomas, while Gore named Brennan and Marshall as models.) Republican stalwarts, however, cared passionately. It had been eight years since they controlled the White House. And they had loathed the Clintons from the day these two brilliant but flawed individuals arrived in Washington. Conservatives’ frustration at a failed Clinton impeachment only intensified on Election Day. In Florida, where Bush’s younger brother Jeb occupied the governor’s mansion and Republicans controlled the legislature, the race remained too close to call.
Two days after the election, Florida’s mandated machine recounts cut Bush’s narrow lead. The NAACP reported voter intimidation and irregularities in some northern counties along the panhandle bordering Alabama and Georgia, despite the Voting Rights Act of 1965. The media, however, focused on the frenzied maneuvering in Tallahassee as the postelection drama unfolded.
The dispute centered on poorly constructed ballots. On the Palm Beach County ballot, the voting holes between the columns failed to align the candidate’s name clearly with the hole to be punched. Further, the lineup, which had always been Republicans first, Democrats second, and then third parties, this time listed Bush first, the independent candidate, Patrick Buchanan, second, and Gore third. Some Gore voters had inadvertently punched the hole designated for Buchanan. For the former Reagan adviser and right-wing commentator to win thirty-seven hundred votes in a Democratic stronghold—nearly twenty-seven hundred more than he received in any of Florida’s other counties, struck even Buchanan as anomalous. Bewildered voters in Palm Beach “overvoted,” punching more than one hole. Elsewhere ballots had “hanging chads” (tiny paper rectangles left hanging that voters were supposed to have pushed through) or “dimpled” chads (rectangles bearing the mark of the metal stylus)—“undervoting” in the parlance of the time.
With an estimated 175,000 votes in dispute, lawyers for both candidates swooped into Tallahassee, initiating a dizzying exchange of lawsuits. On November 9, Gore asked for a manual recount in four counties. Two days later, Bush lawyers, eager to keep their candidate’s razor-thin lead from disintegrating, filed a request in the U.S. district court in Miami for an emergency injunction to halt the manual recounts. A partial recount in only four counties, they contended, violated the equal protection clause by weighting some votes more than others. When the Bush request failed in the Florida courts, he appealed to the Supreme Court. While the appeal was making its way through the federal courts, Secretary of State Katherine Harris, a Republican who co-chaired Bush’s Florida campaign, interceded. Refusing to waive the November 14 deadline for localities to turn in their ballot totals, she ordered that manual recounts not be permitted.
Gore, along with county officials in the four counties that he hoped to win with a recount, challenged the decision. On November 17, the Florida Supreme Court ruled against Harris, extending the deadline for reporting to November 26. Bush’s lawyers, viewing the ruling as an assault on Harris’s lawful authority to certify the election, appealed for the second time to the U.S. Supreme Court. The Florida Supreme Court, they claimed, lacked the legal grounds to order the twelve-day extension. The two Bush appeals reached the Court on Thanksgiving eve, November 22, amid a full-scale attack on the Florida Supreme Court by the Bush campaign and House Republican leaders.
That the nation’s highest tribunal would agree to become involved in a politically charged case grounded in state law at first seemed highly unlikely. Yet the following day the Court announced that it would hear Bush v. Palm Beach County Canvassing Board, Bush’s appeal of the state court’s decision extending the manual recount in the four counties. Bush’s second appeal was temporarily denied; the court of appeals in Atlanta had not yet ruled. With only four votes needed to grant certiorari, there was no way to tell at the time whether the Court as a whole had concluded that the Florida situation was out of control.
The roller-coaster ride for the two campaigns continued. When the November 26 deadline for reporting arrived, Gore had an additional 567 votes from Broward County. Palm Beach County’s addition to the Gore column, which came in ninety minutes late, was rejected. Miami-Dade was still counting, with more than 10,000 ballots yet to be reviewed. Harris officially certified Bush the victor with a margin of 537 votes. Gore’s lawyers filed suit, knowing they were throwing a Hail Mary pass. But before they knew whether they had scored in the Florida courts, the Supreme Court weighed in.
During oral argument in Bush v. Palm Beach County Canvassing Board, the justices appeared to be divided. But on December 4, three days later, the Court announced its unanimous rejection of the Florida Supreme Court’s twelve-day extension of the original November 14 certification deadline. The state court was also instructed to do a better job of explaining the rationale for the extension. Could it demonstrate that it took proper account of certain statutory and constitutional provisions governing federal elections? While nothing was said about Bush’s assertion that the Fourteenth Amendment was relevant to the case, the ruling did call attention to an arcane provision of the U.S. Constitution. According to Article II, Section 5, presidential electors were to be appointed by each state “in such Manner as the Legislature” directed. That provision would end up being a core point—and a highly contentious one—as the Gore challenge to certification of the election tally worked its way up to the Florida Supreme Court.
On December 8, the Florida Supreme Court, composed entirely of Democrats, announced a sweeping and carefully crafted decision designed to pass muster in the high court. The recounts would continue in dozens of counties. Referring to a section of Florida law that said no vote shall be ignored “if there is a clear indication of the intent of the voter,” the court ruled by a 4–3 majority that the certification by the Canvassing Committee was flawed. Nine thousand ballots in Miami-Dade alone, in which voting machines had failed to detect any vote for president, had never been hand counted. “Only by examining the contested ballots, which are evidence in the election context, can a meaningful and final determination…be made,” the majority concluded.
But by what standards would the ballots be examined? The court did not say. Such matters had always been left to localities in Florida, as in the other states. The omission, however, did not go unnoticed by Bush’s lawyers. That night they filed an appeal for an emergency stay blocking the recount, claiming it would cause their client irreparable harm. The final showdown had begun in what had become an increasingly bitter contest.
For the high court, accustomed to proceeding at a more measured pace, the compressed deadlines lent a surreal quality to the next two days. When the justices met in conference early Saturday morning on December 9 to consider the stay application and appeal in what had become Bush v. Gore, the recount had already begun in Florida. The liberals believed the Court had narrowly dodged a bullet with its unanimous ruling the previous weekend. They sat stunned as Rehnquist, Scalia, Thomas, O’Connor, and Kennedy voted to issue a stay. There was no compromise to be had. Justice Stevens authored a sharp dissent, which Souter, Ginsburg, and Breyer quickly signed. To stop the counting of legal votes, Stevens wrote, “the majority today departs from…venerable rules of judicial restraint that have guided the Court throughout its history.” “Counting every legally cast vote cannot constitute irreparable harm,” Stevens continued. “On the other hand, there is a danger that a stay may cause irreparable harm to [Gore and the Democratic challengers]—and, more importantly, the public at large—because of the risk that the ‘entry of the stay would be tantamount to a decision on the merits in favor of the applicants.’ ” Stevens soberly concluded, “Preventing the recount from being complete will inevitably cast a cloud on the legitimacy of the election.”
Publishing his dissent—an unusual act in itself—Stevens provided the public with its first glimpse of the division within the Court. But it was Scalia who inflamed suspicions of partisanship when he responded with a defense of the stay. The recount had to be stopped because it threatened “irreparable harm” to Bush “by casting a cloud on what he claims to be the legitimacy of his election.”
Following a vote, the justices normally retreat to their chambers—but not this time. From accounts pieced together by the New York Times legal affairs analyst Linda Greenhouse, the “shaken and demoralized” dissenters reached out to one another, fearful about the harm inflicted on the Court and the nation by what now seemed an inevitable outcome. Breyer, who had great faith in his ability to persuade, searched for a strategy that might sway Kennedy and conceivably even O’Connor.
Bush and Gore demonstrators clashed outside the Supreme Court, December 12, 2000.
The equal protection argument in the Bush brief had evolved into something new. The question was no longer whether it was constitutional to count votes in some counties but not others. Rather, it was whether the Florida court’s recount order violated Bush’s right to equal protection when counting standards varied from county to county. Breyer and Souter hoped that if they could convince Kennedy that the solution was to adopt a uniform standard for counting, they might be able to acquire the five votes needed to keep the recount going.
Before the justices took their seats for oral argument on Monday morning, the anticipatory buzz that preceded the last argument had turned into a “sullen hum.” The same five justices so ostensibly wedded in Morrison to the primacy of states’ rights and a narrow conception of the equal protection guarantee were now about to reverse their position.
Theodore Olson, a highly prominent Washington lawyer, launched into his argument. State legislatures, he claimed, not state courts, make the rules for presidential elections according to Article II of the Constitution. Justice Kennedy pointed out that courts interpret the words of legislation. Olson then argued that federal law prohibited Florida from changing the rule of vote counting after ballots had been cast. Kennedy responded, “I thought your point was that the process is being conducted in violation of the Equal Protection Clause because it is standardless.” Olson’s response gave Breyer his opportunity. “What would the standard be?” he asked. But Olson continued to dodge.
When Olson rose to give his rebuttal, Ginsburg cut to the core: “And there are different ballots from county to county too, Mr. Olson, and that’s part of the argument that I don’t understand. There are machines, there’s the optical scanning, and then there are a whole variety of ballots. There is the butterfly ballot that we’ve heard about and other kinds of post-card ballots. How can you have one standard when there are so many varieties of ballots?” The question went to the heart of Olson’s claim of an equal protection violation, but time ran out.
Yet nothing had changed. As the 5–4 vote confirmed, the majority had no intention of letting the Florida Supreme Court supervise a recount under any circumstances. The election was effectively over.
Surrounded by bright lights mounted on poles for television cameras in front of the Court, the justices worked on opinions into the early morning hours. Rehnquist turned in a quick draft that Scalia and Thomas joined. In ordering the recount, the opinion stated, the Florida Supreme Court had displaced the role of the state legislature in violation of Article II of the U.S. Constitution. But the ever-optimistic Breyer still clung to his proposed solution: send the case back to the Florida court with instructions to establish one statewide standard for counting. Breyer and Souter agreed that the Florida courts should determine whether the counties could complete such a recount before the Electoral College meeting on December 18.
Faced with such polarized positions, Kennedy and O’Connor came up with a mere twelve-page per curiam (by the Court) opinion, with which Rehnquist, Scalia, and Thomas concurred to create a majority. The opinion did little to explain the rationale for the ruling that the Florida Supreme Court violated the equal protection clause. But it did include a highly unusual passage: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Ginsburg watched the jockeying among the majority, thoroughly disgusted by the distortion of equal protection doctrine. The Court had never indicated previously that election standards violated equal protection. Who were the purported targets of the violation? With early press accounts of violence and intimidation against African Americans in mind, she wrote that if there was any violation of equal protection, it was more likely to be by local and state authorities than the Florida Supreme Court. When Scalia saw the draft of her dissent, he sent a memo accusing her of engaging in “Al Sharpton” tactics about the election. This might have been one of those times when she felt like strangling her friend Nino. But exercising her customary restraint, Ginsburg chose not to fire back, omitting the reference to race from her opinion.
But as someone who had taught a course titled “Conflict of Law and Federal Jurisdiction,” she did not mince words when she focused on the hypocrisy of Rehnquist, Scalia, and Thomas when it came to federalism. “Rarely has this Court rejected outright an interpretation of state law by a state high court,” wrote Ginsburg. Yet three justices (Rehnquist, Scalia, Thomas) did just that by concluding that Florida had violated Article II of the U.S. Constitution. Their simple “disagreement with the Florida court’s interpretation of its own State’s law,” she argued, “d[id] not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that members of Florida’s high court have done less than ‘their mortal best to discharge their oath of office,’ and no cause to upset their reasoned interpretation of Florida law.” Citing precedent, she noted that traditionally the U.S. Supreme Court defers to statutory interpretations by federal agencies, unless the agency transgresses a clear expression of congressional intent. “Surely,” Ginsburg wrote, “the Constitution does not call upon us to pay more respect to a federal administrative agency’s construction of federal law than to a state high court’s interpretation of its own state’s law.”
The Court’s lack of deference to state sovereignty in the dispute also undermined the majority’s equal protection holding. Given widespread failures in voting methods and machine tabulation, Ginsburg argued, “the recount adopted by the Florida court, flawed though it may be,” was no “less fair or precise” than the certification that had preceded that recount. Rather than demand a level of perfection that few other states could have attained, the Court should have deferred to the Florida Supreme Court’s reasonable attempts to tabulate the vote as accurately as possible without imposing a December 12 deadline. “[O]rderly judicial review of any disputed matters that might arise,” which the deadline foreclosed, impaired the state’s effort to ensure equal protection for the majority.
Even more bitter were the words of the eighty-year-old Stevens, whose dissent became the most widely quoted language in the opinion. The majority’s position, he wrote, “can only lend credence to the most cynical appraisal of the work of judges throughout the land,” adding, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
It had been a difficult year and a half since Ginsburg returned from Crete with colorectal cancer. After her surgery and chemotherapy, Marty told her to get a trainer because she “looked like a survivor of Auschwitz.” She had gradually begun to regain her strength working with a fitness trainer at the Supreme Court gym, but she sorely needed what remained of the end-of-term recess. Having the Bush-Cheney team in control for what could be the next eight years did not bode well for the values and causes she cherished.