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Picture the confirmation hearing for the next Supreme Court nominee: The questioning about Roe v. Wade is over, and with the nation tuned in, senators lean forward to ask about the next big issue — Gibbons v. Ogden, decided in 1824. Not satisfied, the lawmakers press further, peppering the nominee with sharp questions about the Tenth and Eleventh amendments. The Gibbons ruling, in which the Supreme Court first sketched a broad vision of congressional power to regulate interstate commerce in a young nation, and two constitutional provisions establishing boundaries on federal power may not resonate as loudly with the general public as Roe v. Wade or prayer in public schools. But they are very much in play in Washington these days. The Supreme Court has declared constitutional war on Congress. The latest shot came last week when the high court struck down portions of the Violence Against Women Act (VAWA), tossing aside extensive findings establishing a link between gender-based violence and interstate commerce, findings that Congress used to justify passage of the law in 1994. Nice try, but not nearly good enough, the Court held in telling Congress it had stepped over the line. “Congress’s findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected,” Chief Justice William Rehnquist wrote for the five-justice majority in the consolidated cases United States v. Morrison and Brzonkala v. Morrison. Never mind that the Court’s rejection of the reasoning came long after Congress made the findings. Deference to Congress be damned, Rehnquist was saying, the people’s representatives got it wrong. In addition, a little-noticed speech last month by Justice Antonin Scalia served notice that more judicial disrespect of Congress is in the offing. “My Court is fond of saying that acts of Congress come to the Court with the presumption of constitutionality,” Scalia said at a Michigan State University symposium. “But if Congress is going to take the attitude that it will do anything it can get away with and let the Supreme Court worry about the Constitution … then perhaps that presumption is unwarranted.” The Morrison ruling and the Scalia speech amount to a remarkable one-two punch aimed at Congress, which was already on the ropes in its constitutional fight with the Rehnquist Court. The Supreme Court has struck down parts or all of 22 federal laws since 1995 ( see chart), including the Gun-Free School Zones Act, the Religious Freedom Restoration Act, and several statutes that made states vulnerable to being sued — an unprecedented run that seems certain to open a new front in the political battle over the future direction of the Supreme Court. SLIPPERY SLOPE? The fissure between a mostly divided Rehnquist Court and Congress is likely to find its way into future confirmation debates. But for now, politics is blurring the battle lines. Last week, after what some believe was the sharpest rebuke delivered to Congress by another branch of government in years, the cries of outrage from Capitol Hill were few. As chairman of the Senate Judiciary Committee, Sen. Orrin Hatch, R-Utah, might have been expected to race to the ramparts to defend Congress. Instead, Hatch applauded the Court. “The restoration of federalism scrutiny in our federal courts is a welcome development in the law.” The lawmaker who protested loudest was Sen. Joseph Biden, the Delaware Democrat who was the primary author of the VAWA. “These folks are judicial activists,” Biden said of the justices in the majority. “The Court really went off here.” Why the disconnect between the Supreme Court’s disrespect and congressional reaction to it? In part, says New York Law School Court scholar James Simon, “the Court may be reflecting the mood of the country. People don’t want Congress to do everything.” The congressional tendency to rush in and legislate on all of society’s problems was bound to be reined in sooner or later, says Rutgers University political scientist Ross Baker, an expert on Congress. “Violence against women, religious freedom — they have high-flown titles that make the Supreme Court appear misanthropic when it strikes them down,” says Baker. “But federalism is a principle that needs to be vindicated periodically.” Congress does not protest much, Baker says, because what the Court is doing is a part of the inter-branch minuet that serves Congress well. “An alarmingly large number of laws are passed with members of Congress thinking that they won’t pass constitutional muster, but that the Supreme Court is there to fix the damage,” Baker says. “Members of Congress can then lament the ruling and move on.” And so far, the Supreme Court repair shop has fixed the damage in ways that serve a conservative, states’ rights agenda-another reason why the Republican-led Congress is not protesting the trend. That silence could end if the Supreme Court applies the same skepticism to laws less reviled by conservatives. COMMERCE CLAWS Among the cases still left for the Court to rule on this term are several that could put that to the test. In Dickerson v. United States the issue is a law passed by Congress in 1968 aimed at thwarting the Court’s famed Miranda v. Arizona decision on the right to remain silent under police interrogation. A Court that struck down in 1997 the Religious Freedom Restoration Act on the grounds that Congress had usurped the judiciary’s role in interpreting the Constitution ( City of Boerne v. Flores) could also resent Congress for trying to mess with its constitutional vision in Miranda. In recent rulings, the Court has also showed signs of skepticism toward the Republican-driven efforts to streamline death row appeals embodied in the Anti-terrorism and Effective Death Penalty Act. In Jones v. United States, another pending case, the application of the federal arson law to a house fire — justified on the same “interstate commerce” grounds that were invoked in the VAWA — could lead to another Court invalidation of a federal law. Donald Falk, the Mayer, Brown & Platt partner who argued against the arson law in March, found in last week’s Morrison decision “reason to be cautiously optimistic” about the outcome of Jones. “Regulation of commerce is regulation of commerce, it’s not just anything that strikes Congress’ fancy,” said Falk. Falk says the arson case could be decided on statutory grounds, but “it could be that the battle lines [on commerce clause jurisprudence] are so fiercely drawn that the majority may want to nail down the territory” by issuing a Morrison-like decision striking down the private residence aspect of the law on constitutional grounds. And if that happens, a number of other federal criminal laws could be vulnerable down the line, says Falk. If nothing else, Morrison stands as a beacon signal to lower courts that the 1995 ruling in United States v. Lopez, striking down the Gun-Free School Zones Act, was not an aberration. Lopez was the first ruling in decades to find a congressional enactment unconstitutional on commerce clause grounds. “Lower courts largely ignored Lopez, but now they can’t,” says Johnny Killian of the Congressional Research Service, a longtime student of the relationship between Congress and the Court. “To be consistent, the lower courts may be working their way through some other laws.” The challenge to Congress implicit in Morrison may also lead lawmakers to tighten their legislative drafting work to ensure that laws are firmly rooted in the enumerated powers the Constitution grants to Congress and are not just for show. “Congress has its marching orders now,” says New York Law School’s Simon. “It’s clear that Congress is going to have to make a very clear showing that what it is regulating affects economic activity.” Of course, the congressional sponsors of the VAWA thought they had done just that, documenting a $3 billion loss to the national economy caused by violence against women. But the Court said it would be the final arbiter of whether that documentation meets the Lopez standard — and in the case of the VAWA, it didn’t. HIGH ON THE HILL So, like a student who works harder, but still gets low grades, Congress may throw up its hands and resume business as usual. “I don’t know if this decision will wake up Congress,” says Louis Fisher, another legal scholar at the Congressional Research Service, an arm of Congress. But certainly, says Fisher, the recent trend will revive an age-old debate over who should have the final word on what the Constitution commands. Marbury v. Madison gave that job to the judiciary in 1803. As Fisher is fond of pointing out, however, both Antonin Scalia and Anthony Kennedy during their confirmation hearings suggested that the other branches have a role to play in interpreting the Constitution. Kennedy said, for example, that if the Supreme Court suddenly overruled New York Times v. Sullivan, Congress could pass a law to counter it and give the press First Amendment protection in libel cases. “It doesn’t seem to me,” said Kennedy in 1988, “that just because the Supreme Court has said it, legislators cannot attempt to affect its decision in legitimate ways.” The colloquy was brief, and Kennedy, solidly in the Rehnquist majority on these issues, might well disavow that view today. But the next time a nominee goes before the Senate, the issues of supremacy and commerce clause interpretation in Court-congressional relations will undoubtedly be aired at greater length. In the meantime, most commentators do not see the Court’s new attitude toward Congress leading to a wholesale scrapping of federal legislation. Even though Justice David Souter noted in his dissent in Morrison that core civil rights laws have been justified on skimpier commerce clause grounds than was the Violence Against Women Act, those laws are probably off-limits even with this Court. “This stuff is like an accordion — it retracts and expands,” says Stanley Brand, onetime general counsel to the House of Representatives and now partner at Brand & Frulla in the District. “I wouldn’t predict a total end to congressional power.” Brand also notes that Morrison and many of the other rulings have come by the slenderest of majorities, and could flip with a single justice’s change of mind or retirement. When Biden was asked how to remedy the Court’s ruling on the VAWA, his answer was to elect Al Gore as president, presumably to strip Rehnquist of his majority through new appointments. Still, there was a widespread sense last week that Morrison was a watershed case — an extension of United States v. Lopez that denigrates congressional power to a level not seen since the 1930s. That is when New Deal legislation was routinely struck down by the Supreme Court — until 1937, when the “switch in time that saved nine” took hold and the Court began to see things Franklin Roosevelt’s way. In National Labor Relations Board v. Jones & Laughlin Steel Corp. and other rulings, the Court again took a broader view of congressional power to regulate commerce — a stance the Court stuck with fairly consistently until Lopez. Recalling that earlier time, Souter’s dissent in Morrison last week expressed hope that the Court’s current stance against Congress will also collapse of its own weight. He was not referring to changes in the Court’s composition so much as what he sees as the likelihood that the Court will tire of the “ad hoc review” of a parade of legislation for commerce clause credentials. “All of this convinces me that today’s ebb of the commerce power rests on error,” said Souter, “and at the same time leads me to doubt that the majority’s view will prove to be enduring law.” Related Chart: Conflict Timeline Decisions by the Rehnquist Court striking down acts of Congress.

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