It was a one-two punch for states’ rights at the Supreme Court on Jan. 11.The morning began with Justice Sandra Day O’Connor announcing, in quiet,measured tones, that Congress had exceeded its power in applying the AgeDiscrimination in Employment Act to state and local government employers.Moments later, the justices turned their attention to another case andanother congressional enactment — the Violence Against Women Act, oneprovision of which allows victims of gender-based violence to sue theirassailants in federal court. After an hour of contentious oral argument, itappeared that provision too was headed for the dustbin, a victim of thecourt’s federalism juggernaut.
It was a rare convergence of two cases on the same subject, one beingannounced and the other argued on the same day. The Court’s 5-4 decision inKimel v. Florida Board of Regents, striking down ADEA as it applies to stateand local employers, contains language that the lawyers who were arguing inthe VAWA case almost surely would have liked to look at before they rose tospeak. But they could not, and even though none mentioned the Kimeldecision, it seemed to cast a shadow over the arguments in favor of VAWA inUnited States v. Morrison and Brzonkala v. Morrison.