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In a resounding rebuke to Congress, the Supreme Court on Monday struck down the provisions of the federal Violence Against Women Act that allowed women to sue their abusers in federal court. Ruling 5-4 in the consolidated cases of United States v. Morrison and Brzonkala v. Morrison, the Court said that by giving women a federal court remedy, the law went far beyond the constitutional limits on the power of Congress to regulate interstate commerce and to enforce the Fourteenth Amendment. Congress had justified the law on both grounds when it was enacted in 1994. Extensive congressional findings that concluded violence against women had a major impact on the national economy were not enough to save the law, Chief Justice William Rehnquist wrote for the majority. Only state law, said Rehnquist, can provide a remedy for Christy Brzonkala, a Virginia college student who invoked the Violence Against Women Act (VAWA) in a suit against two male students who allegedly raped her. The decision amounts to a substantial extension of the Court’s 1995 decision in United States v. Lopez, which struck down the federal Gun-Free School Zones Act because gun possession near schools had no connection to interstate commerce, one of the areas the Constitution specifically says Congress may regulate. Ever since Lopez, commentators have wondered whether it was an aberration or a signal that the court was shifting toward a major curtailment of congressional power. The Court answered that question Monday, applying Lopez broadly to a federal law which, unlike the gun law, had been backed up by what dissenting justice David Souter called in his dissent a “mountain of data” supporting the connection between gender-based violence and interstate commerce. But the Rehnquist majority — the same lineup as in Lopez — brushed aside the congressional findings. Similar links to commerce could be made about almost any crime including murder, Rehnquist said, or other areas of law traditionally dominated by states — including family law and divorce. Giving Congress free rein to legislate in those areas would upset the constitutional balance between the states and the federal government, Rehnquist said. “The Constitution requires a distinction between what is truly national and what is truly local,” Rehnquist wrote. Joining Rehnquist were Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Sen. Joseph Biden (D-Del.), the author of VAWA, said the decision “is going to have a lot less impact on violence against women than on the United States Congress.” Only a small portion of the law was at stake in the Supreme Court case, Biden said, but the ruling dealt a powerful blow against Congress’ ability to regulate interstate commerce. But Souter argued that by rejecting the congressional findings, the majority was improperly substituting its own judgment for that of Congress. Making the determination of a link to interstate commerce, said Souter, “is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours.” He noted that Congress made far skimpier interstate commerce findings to justify the Civil Rights Act of 1964, which was upheld in Heart of Atlanta Motel v. United States. In that 1964 decision, the Court said discrimination against blacks in hotels in the South affected interstate commerce — the kind of link today’s court would probably find insufficient. “Today’s ebb of the commerce power rests on error,” said Souter, who was joined in dissent by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer. Souter also noted that 38 states had supported the challenged federal provision on the grounds that the current system for dealing with violence against women is inadequate. “It is, then, not the least irony of these cases, that the states will be forced to enjoy the new federalism whether they want it or not.” The majority also rejected the law on Fourteenth Amendment grounds. Because the VAWA was aimed at punishing the acts of individuals, Rehnquist said it could not be justified under the Fourteenth Amendment, which targets only state actions that violate individual civil rights. The Court’s reading of the Fourteenth Amendment was consistent with most of its precedents dating back more than a century. The commerce clause aspect of the ruling brought sharp criticism from Court commentators who saw it as a return to pre-New Deal understanding of the commerce powers of Congress. “This Court, unlike any Court since the New Deal, is prepared to take a careful look at congressional enactments and second-guess Congress,” said University of Chicago law Professor Cass Sunstein, who helped write a brief supporting the law. “The invalidation of the VAWA represents a further invigoration of Lopez through the highly activist technique of refusing to accept congressional findings of cumulative economic impact,” said Harvard law Professor Laurence Tribe. But others saw it as a responsible exercise of judicial oversight of the way Congress exercises its power. “If the Court did not scrutinize the congressional fact-finding the way it did, it would be giving the power to interpret the Constitution to any congressional staffer with a laptop,” said Jeffrey Sutton, a Columbus, Ohio, partner at Jones, Day, Reavis & Pogue. Sutton filed a brief in the case on behalf of the state of Alabama. The decision was also a defeat for women’s rights groups that fought hard for passage of VAWA as a way of getting federal protection for women in an area where state enforcement was spotty. The case involved Christy Brzonkala, a former student at Virginia Polytechnic Institute who invoked the law after two football players allegedly raped her on campus. After school and local authorities did not punish the two, Brzonkala sued in federal court under VAWA. The 4th U.S. Circuit Court of Appeals struck down the law. Martha Davis, who represented Brzonkala for the NOW Legal Defense and Education Fund, says the decision “really chills Congress’ ability to act. … not only with women’s rights but civil rights as well.” In the Court ruling, Rehnquist wrote that if Brzonkala’s allegations are true, “no civilized system of justice could fail to provide her a remedy.” Said Davis: “We agree, but we think that’s what Congress was doing here,” namely setting a national baseline for how to treat violence against women. Davis said “scores to hundreds” of women’s VAWA claims will be thrown out because of Monday’s decision. Brzonkala has pursued other legal remedies unaffected by the Supreme Court case. In another federal claim, she argued that Virginia Tech’s handling of the case violated her right to an equal education under Title IX. A high court ruling last year allowed students at schools receiving federal aid to sue school administrators if they deliberately ignored a student’s claim of sexual harassment by another student. Brzonkala’s lawyer, Richmond, Virg. sole practitioner Eileen Wagner, says her client settled the Title IX claim against Virginia Tech two months ago for $75,000. Michael Rosman is a Center for Individual Rights attorney who represents Antonio Morrison, one of the men accused of raping Brzonkala. He said the court’s ruling was “a great Constitutional law decision.” Biden said he could not conceive of a legislative way to fix the provisions struck down by the Court. But M.C. Sungaila, an associate at Horvitz & Levy in Encino, Calif., who wrote a brief for several women’s rights groups, said it is possible that even under the Court’s ruling, a new law could be drafted that would give women a federal remedy in cases where the link to interstate commerce could be made more clearly.

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