What the Supreme Court Will Be Thinking...For a Long Time

Our blogfriend Amanda Marcotte yesterday provided a helpful paean to the Violence Against Women Act (VAWA). This is a federal law that, over the last decade, has managed to dramatically curb domestic violence. It does this by, among other things, providing money to shelters, providing money for police training in domestic violence matters, and making restraining orders enforceable over state lines.

VAWA is up for reauthorization this year; there’s reason to hope it will pass, but you never know, with this Congress.

We at the Blasphemy Blog first learned about VAWA when we studied the 2000 United States Supreme Court Case U.S. v. Morrison. In that case, a young woman who had been raped by football players at the state university she attended sued her school under VAWA, which provided a cause of action for people when state governments fail to protect them from domestic abuse.

You may have noticed that we didn’t mention such a cause of action when we enumerated VAWA’s provisions in the first paragraph. This is because the Supreme Court threw out the lawsuit.

Chief Justice Rehnquist wrote in his majority opinion that he believed the young woman was due her day in court. But, he wrote, Congress did not have the power to let her file a lawsuit in federal court.

Why? Well, Congress’ power under the Constitution is limited. It can’t just make a law about anything it wants to; it can only write a law that exercises enumerated powers. In the case of the VAWA lawsuits, Congress used its enumerated constitutional power to regulate interstate commerce.

But do domestic violence and rape affect interstate commerce? Congress compiled a lot of evidence that demonstrated it did. The Supreme Court ignored it, rejecting the idea that Congress could regulate anything that affected interstate commerce just because it was allowed to regulate interstate commerce.

This is where we stand today. Your state government gets money to protect you from domestic violence, but if they don’t do it, you can’t sue in federal court. (And good luck suing in state court, where judges are elected and therefore allergic to opening new cans of litigation worms.)

Why is this important with regard to our soon-to-be new Supreme Court? Well, lots of Congressional action is based on the interstate commerce clause. Lots of things that we as citizens count on arise from laws passed using the commerce clause. The power to sue under the Civil Rights Act, which was largely responsible for enforcing integration, comes from the commerce clause.

But there has been a backlash in recent years. Lots of conservative jurists really, really don’t like the expansive reading of the commerce clause. They complain that Congress has gotten too good at claiming just about anything could be considered interstate commerce, and they consider it an affront to federalism, and an unnecessary diminution of state power at the expense of the government.

We at the Blasphemy Blog have never understood why letting an individual sue a state in federal court takes away state power to do anything other than commit indiscriminate evil. After all, the government is not the one suing the state; the government is just providing the forum. The individual sues the state, and therefore Congress, exercising an expansive commerce regulation power, has simply granted an individual power over his or her state and local government. And giving individuals power over governments is, in our view, a good thing.

The Supreme Court does not see it this way, currently (except when it comes to medical marijuana). And, thanks to the fact that Republicans pick our Supreme Court Justices, it’s going to stay that way for a while. Justice Sandra Day O’Connor and soon-to-be Justice John Roberts are probably about the same on the interstate commerce issue.

But why such passion for keeping rape lawsuits out of federal court? We at the Blasphemy Blog have no real clue, just a sneaking suspicion that lots of powerful people in this country are still mad about black people getting the vote in the South and want to go back to the days when rich folk could look the other way as the underclass was mistreated.

Because make no mistake: when you take away a person’s right to sue, for any reason, you give the powerful more power over the powerless. The only reason chemical companies don’t dump their toxic waste in Southeastern Washington, D.C., is that the parents of the kids who got sick would sue. DuPont would pay EPA fines all day; just write it off as a business expense. Only the fear of facing down a sick kid in court keeps them honest. Otherwise, what else are they going to do? Write to their Senator?

Are we paranoid to think that the Supreme Court will take away the power to sue, just because a solid majority of Justices are going to believe in a narrow reading of the commerce clause for the next twenty years? You tell us. We’re just glad we don’t live in Southeast.