Throughout the 1990s, the Supreme Court handed down a series of controversial decisions that curtailed federal power and bolstered the authority of the states. But the practical consequences were modest, and the decisions left Congress with many other ways to fulfill its legislative agenda.
This week could be different.
On Tuesday, the justices will hear oral arguments in a dispute concerning federal penalties for rapists and other perpetrators of violence against women. The case presents a direct challenge to the Rehnquist Court's signature effort to rein in federal laws that encroach on the states.
At issue is a key provision of the 1994 Violence Against Women Act that allows women to sue their attackers in federal court for money damages. In passing the law, Congress said it was responding to "a national tragedy played out every day in the lives of millions of American women at home, in the workplace, and on the street."
Congress said it could authorize the lawsuits for what traditionally have been state crimes based on its power to regulate interstate commerce--for example, to ensure that women weren't intimidated from looking for jobs in other states--and to enforce civil rights--in this case, to take care of victims of "gender-motivated violence" and ensure equal protection of the laws. Even as Congress was considering whether to pass the law, Chief Justice William H. Rehnquist had singled it out in his complaints that Congress was increasingly federalizing crimes for symbolic reasons.
The case in hand was brought by a Virginia Polytechnic Institute student who claimed she was raped by two football players. The U.S. Court of Appeals for the 4th Circuit rejected the congressional reasoning behind the law in a ruling last year, saying, "Such a statute . . . simply cannot be reconciled with the principles of limited federal government upon which this nation is founded."
The Justice Department and lawyers for Christy Brzonkala, trying to use the law to sue Antonio J. Morrison and James L. Crawford for an alleged 1994 dormitory attack, say that if the Supreme Court agrees with the 4th Circuit it will hamper Congress's power to enforce an individual's constitutional rights and seriously curb its ability to regulate interstate commerce. The 4th Circuit had said Congress's commerce power is limited to regulating activities that are "economic" in nature.
Solicitor General Seth P. Waxman has asserted that it's not the character of the activity, but its impact on interstate commerce, that should matter. Regarding congressional power on behalf of civil rights, he said extensive federal hearings demonstrated "pervasive bias" in state criminal justice systems that deny women who have been assaulted the equal protection of the laws. He said bias and gender stereotypes were reflected in state laws, rules of evidence and "especially the attitudes of police, prosecutors, and judges."
Unlike earlier high court battles between Congress and the states, the states are on the side of the federal government here. Thirty-six states, including Maryland but not Virginia, signed a "friend of the court" brief offering a rendition of the human suffering and billion-dollar public costs associated with violence against women. The states pointed to studies that showed that the total costs endured by rape victims are greater than costs suffered by victims of other violence, and that states bear a significant portion of that through emergency, medical, welfare and insurance payments.
Lawyers for Morrison and Crawford and their supporters assert that if the high court reverses the 4th Circuit it will open the door to unlimited congressional meddling and a violation of the nation's basic constitutional framework. They say domestic relations and criminal law belong in the hands of local police and courts.
"The Constitution created a federal government of enumerated powers to ensure protection of our fundamental liberties," Morrison's lawyers argue, adding that he "has a right to be free from an overreaching Congress, just as he has the right to be free from a Congress that would pass a law abridging freedom of speech."
While numerous women's rights advocates and shelters have joined the side of Brzonkala, a few women's groups have signed on with Morrison and Crawford, including the Eagle Forum Education and Legal Defense Fund.
The main point of contention between the numerous organizations that have weighed in on the joint cases of United States v. Morrison and Brzonkala v. Morrison is not whether violence against women is a serious issue, but how it should be addressed.
Federal vs. State
In the following major cases, the court curtailed the power of Congress by striking down:
* Portions of a federal law requiring states to regulate the disposal of low-level radioactive waste. (1992)
* Congress's attempt to ban guns within 1,000 feet of local public schools. (1995)
* Part of an Indian gaming regulation that allowed tribes to sue in federal court when states failed to negotiate reservation gambling compacts. (1996)
* The Religious Freedom Restoration Act, which allowed governments to infringe on religious practices only if they had a health, safety or other "compelling interest" in doing so. (1997)
* A part of the Brady Handgun Violence Prevention Act, which ordered local sheriffs to check the backgrounds of would-be handgun purchasers. (1997)
* Parts of federal statutes that allowed individuals to sue a state for violating federal laws, in disputes involving overtime wages, patent infringement and a prohibition on false advertising. (1999)