26. Reckoning at the Supreme Court
Of course, the prospects for VAWA, at least for a civil rights remedy, were too good to be true and the Supreme Court immediately found the provision unconsititutional as soon as a case reached it.
It was the case of Christy Brzonkala, who said she was raped by two football players at Virginia Polytechnic Institute. The college's sexual assault policy was unsatisfactory, to put it mildly. One of her alleged rapists was an important football player and the proceedings against him were reduced to “abusive conduct.” He would have been eligible to play when Virginia Tech went to the Sugar Bowl in 1995, had he not been charged with breaking the door of a bar and hit and run.
Judges found VAWA's civil remedy unconstitutional almost every step of the way. She lost at the District Court, won before an appellate panel, lost in an en banc rehearing and eventually would lose at the Supreme Court.
Before she did, however, the high court decided two other cases that would limit the commerce clause and be used to strike down VAWA. The first was United States v. Lopez, where the court said that a federal law regulating guns near schools was not justified by the commerce clause. Justices Breyer, Souter, Stevens and Ginsburg dissented. Breyer's dissent argued that the gun law could have been upheld readily under existing precedent applying a rational basis test.
Lopez was decided in 1995, about a year after VAWA, which Rehnquist had vigorously opposed, was enacted,
In 1997, City of Boerne v. Flores addressed congressional power under the 14th amendment. Congress had passed the Religious Freedom Restoration Act in 1993, setting forth a compelling state interest for a law burdening the exercise of religion. It relied on the same law that supported the civil rights remedy in VAWA. But in Borene, the court rebuffed Congress's attempt to tell it what test to use to judge constitutionality. It required congurence and proportionality between the injury and the remedy in legislation enacted under the 14th Amendment.
Both the constitutional provisions underlying VAWA had been battered. During argument Justice O'Connor asked for a “hook” to the commerce clause, and she turned out to be Justice Rehnquist's fifth vote to strike down VAWA. Gender motivated crimes of violence were not economic activity, and the voluminous fact findings of Congress were irrelevant. The four who dissented in Lopez dissented again.
Rehnquist also relied on the Civil Rights Cases of 1883 – which upheld racial discrimation – to say that the 14th amendment reached only state action. Those cases were written by Justice Joseph P. Bradley, who had also written the words, based on “the law of the Creator,” that prevented Myra Bradwell from becoming a lawyer, “The Supreme Court, as ever mostly male, closed the twentieth century be reaffirming a nineteenth-century justice who claimed blacks were the law's favorites and women were protected, thanks to the Creator, by men.
Toward Equality (Twenty-first Century)
Strebeigh writes that we don't know if Harriet Meiers was nominated to the court to serve as a “screen” to allow President Bush to nominate two men, John Roberts and Samuel Alito, to the court. We do understand that Justice Rehnquist maneuvered Justice O'Connor off the court ahead of him, leaving a vacancy to be filled by Roberts, his former clerk.
Streibeigh writes, “One might supposed that the gender of judges no longer shapes judgments about gender. But during the last three decades of the twentieth century, that supposition proved often false. Men in law fought to avoid looking closely at discrimination. Men in law fought to penalize pregnant women at work. Men in law fought to permit their firms to discriminate against women. Men in law saw sexual harassment at normal conditions of employment. Men in law cut away the legal power of Congress to curtail violence against women. Men in law then gained an increased majority on the court.”
Male presidents and senators allowed that to happen, he points out, writing before Justice Sonia Sotomayor ascended to the bench, appointed by President Barack Obama. “Voters can vote for equality.”