United States v. Morrison (2000):

Summary and Analysis of Oral Arguments

William Gohl

POL 400 – Constitutional Law

Dr. Jim Riley

March 16, 2010











Table of Contents

I.        Case Information and Summary of Ruling                                                                                3

II.     Summary of Attorneys’ Oral Arguments                                                                                  5

a.       Julie Goldscheid (for Brzonkala, petitioner)                                                                  5

b.      Seth P. Waxman, Solicitor General (for United States, petitioner)                                7

c.       Michael E. Rosman (for Morrison, respondent)                                                           9

III.   Analysis of Arguments                                                                                              11

a.       Goldscheid                                                                                                               11

b.      Waxman                                                                                                                   12

c.       Rosman                                                                                                                    13

IV.  Impressions and Learning Outcomes                                                                                     15

References                                                                                                                                 17












I.        Case Information and Summary of Ruling

In the fall of 1994, not long after enrolling at Virginia Polytechnic Institute (Virginia Tech, Christy Brzonkala met Antonio Morrison and James Crawford, both varsity football players. Soon after meeting Morrison and Crawford, Brzonkala alleged that the men raped her, and filed a complaint against the pair under the university’s Sexual Assault Policy in 1995. At hearing on the complaint, Morrison admitted to having sexual contact with Brzonkala that he claimed was consensual, but the university failed to find evidence to hold Crawford accountable. The university suspended Morrison for two semesters, but upon appeal for procedural technicalities, the university retried Morrison under its Abusive Conduct Policy. After being found guilty of using abusive language, Morrison again appealed, and the university provost struck down Morrison’s punishment, finding it too excessive in comparison to other like convictions under the university policy, deciding instead that he be put on probationary status and receive counseling. Brzonkala then filed suit in the United States District Court for the Western District of Virginia against Morrison, Crawford, and Virginia Tech under the Violence Against Women Act of 1994 (hereafter VAWA), which permitted victims of gender-motivated violence to seek federal civil damages from their abusers. The district court, however, held that Congress lacked the constitution power to pass the act under either the Commerce Clause (Article I, Section 8) or the Fourteenth Amendment, and the 4th Circuit Court of Appeals affirmed. The Supreme Court heard the case on a writ of certiorari to the 4th Circuit.

On Tuesday, January 11, 2000, the Court heard oral arguments for United States v. Morrison, 529 U.S. 598 (2000). Julie Goldscheid argued on behalf of Brzonkala, petitioner, and Solicitor General Seth M. Waxman, after the United States stepped in to defend the validity of the statute, argued on behalf of the United States, also petitioner. Michael E. Rosman argued on behalf of Morrison, the respondent. In a 5-4 decision, the Court ruled in favor of Morrison, striking down VAWA as an unconstitutional act of Congress under both the Commerce Clause and the Fourteenth Amendment. Chief Justice William H. Rehnquist wrote the opinion of the Court. In affirming the decision of the 4th Circuit, Rehnquist began by stating that since the Court’s decision in NLRB v. Jones & Laughlin Steel Corp. (1937) at the close of the New Deal era, “Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause” (U.S. v. Morrison, 2000). He then clarified, however, that as was demonstrated in the Court’s invalidation of the Gun-Free School Zones Act of 1990 in United States v. Lopez (1995), clearly defined limitations exist on Congress ability to exercise the Commerce power, specifically that acts of Congress have to regulate only channels, instrumentalities, and activities having a substantial relation to commerce. In Lopez, the Court found that regulating gun possession was not economic in nature, had no express jurisdictional element, demonstrated no express congressional findings of effects of gun possession on interstate commerce, and featured a generally attenuated link between gun possession and interstate commerce (U.S. v. Lopez, 1995, U.S. v. Morrison, 2000). Applying the Court’s decision in Lopez, then, to the gender-motivated crimes of violence at issue under VAWA, Rehnquist explained that although the act found basis in numerous congressional findings of fact, the lack of direct economic activity involved and absence of a  jurisdictional element denied Congress the ability to constitutionally enact the law. “If accepted, petitioners’ reasoning would allow congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption,” Rehnquist wrote, explaining what might be plausible if the Court allowed the act to stand (U.S. v. Morrison, 2000). He also noted that the “Constitution requires a distinction between what is truly national and what is truly local,” asserting that a response to non-commercial, intrastate violence should be left to the police power of the states, and not to congressional regulation (U.S. v. Morrison, 2000).

In a dissenting opinion, Justice John Paul Stevens disagreed with the majority’s holding that the data in support of the VAWA was insufficient in itself to summon Congress’s power to regulate commerce, a significant difference in his eyes from the facts present in Lopez. “It is clear,” Stevens wrote, “that some congressional conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser values than the once-stable doctrine would assign them” (U.S. v. Morrison, 2000). He maintained that the raw numerical indications of gender-based violence and their impact on interstate commerce presented in support of the act were simply too apparent and widespread for Congress to sit idly by and refrain from exercising its constitutional privilege. For this reason, Stevens demanded a return to the true facts of the case. “The facts that cannot be ignored today are the facts of integrated national commerce and a political relationship between States and nation much affected by their respective treasuries and constitutional modifications adopted by the people,” he concluded, suggesting that the standard of federalism present in Morrison was as stable as pre-Great depression laissez-faire economics (U.S. v. Morrison, 2000). Although not discussed here, Justices Steven Breyer and David Souter also issued dissenting opinions to much of the same effect.

II.     Summary of Attorneys’ Oral Arguments

a.       Julie Goldscheid (for Brzonkala, petitioner)

Arguing for Brzonkala, petitioner, at oral argument, Julie Goldscheid addressed the Court first. She opened by citing the congressional findings which backed VAWA and demonstrated gender motivated violence’s effect on interstate commerce. These findings became the basis for her primary argument: because gender-motivated violence affects commerce, its effect on those that are the subject of discriminatory behavior can be mitigated by Congress. Not long after she began, Justice Antonin Scalia interrupted her and ruminated over the potential expansion of the inherent principle present in her argument and VAWA itself.  If indeed non-gender-based violence against women or, for that matter, against men also has a substantial effect on interstate commerce, I suppose Congress could enact a general criminal statute against... against violence, a Federal... a Federal rape law, a Federal robbery law,” he posed to Goldscheid, pushing to see how far she would maintain her position (U.S. v. Morrison, 2000). (Justice David Souter later revisited this question with Goldscheid and the attorneys which followed her. The majority opinion shows that this question was vital in shaping the decision of the Court.) Goldscheid responded that because VAWA requires clear indication of a discriminatory element in the action it penalizes along with the established effect of the action on interstate commerce, it differed from the other criminal actions listed. “If all that is necessary that there be some effect […] on interstate commerce,” Justice Scalia responded, “you have a Federal Government that can legislate in the entire realm of criminal law, which is certainly not what the Founders thought they were creating,” a conclusion reminiscent of the majority’s eventual holding (U.S. v. Morrison, 2000). Goldscheid later clarified that she believed a federal murder statute would be unconstitutional, affirming her position that the federal government cannot legislate in most of the realm of criminal law, but maintained that VAWA did not infringe upon the police power of states.

Goldscheid also noted that issues of discrimination have traditionally been an area of federal concern and argued that federal action to regulate discrimination does not infringe upon the rights of states, another consideration in determining VAWA’s constitutionality. She referenced the amicus curiae briefs of 38 Attorneys General submitted in support of the petitioner, a testament in her view to the practicality of cooperative federalism in combating discriminatory violence’s effect on commerce. VAWA “leaves the traditional areas of divorce, child custody, equitable distribution expressly and entirely undisturbed,” Goldscheid explained, therefore respecting the separation of federal government and state (U.S. v. Morrison, 2000). Several members of the Court, however, took issue with her position, one of whom was Justice Sandra Day O’Connor. O’Connor saw no reason for which Congress would be limited from disturbing the other areas Goldscheid identified if the Court accepted her argument and the constitutional legitimacy of VAWA. “If there’s bias against women and they’re not receiving adequate alimony or its not enforceable in court in the States, then it would also have an effect on commerce,” Justice O’Connor remarked, suggesting that under Goldscheid’s argument, the federal government might have some constitutional stake in issues of alimony, a traditionally State concern (U.S. v. Morrison, 2000). Justice Ruth Bader Ginsburg joined Justice O’Connor’s line of thought, citing the distribution of marital property upon divorce as another historically biased activity which might meet Goldscheid’s criteria. Goldscheid referred to the justices’ examples as “close calls” that might require further explication of her position, but that did not, in her view, compromise the complementary relationship between federal government and state present in VAWA.

b.      Seth P. Waxman, Solicitor General (for United States, petitioner)

Solicitor General Seth P. Waxman followed Goldscheid on behalf of the United States, also petitioner. Waxman began by establishing his belief that the Court could find VAWA constitutionally viable while adhering to the limits on Congress’s exercise of its commerce power as set out in Lopez. He asserted that issues that are not economic in themselves, but still affect interstate commerce, call the federal government to step in with the power of regulation in a special way. Given the circumstances surrounding VAWA, the extraordinarily damaging nature of discriminatory violence, as in what Brzonkala experienced, required an extraordinary congressional response. In processing Waxman’s take on Lopez, Justice O’Connor asked if VAWA needed a “jurisdictional hook,” meaning a particular area, classification, or other such criterion which limits the scope and effect of a law, to function constitutionally. In Lopez, the Court found that Congress must have some type of hook to assert its commerce power, and O’Connor noted that VAWA seemed to be without any such hook. Waxman answered that VAWA applied to instances of discriminatory violence alone, a potential hook and confining jurisdictional element in itself. He specified, however, that VAWA did not need a definite hook given constitutional precedent separate from Lopez, and it should not have a hook, because discriminatory violence occurs in a multitude of settings and circumstances, all of which substantially affect interstate commerce. Justice O’Connor responded, much as she did to Goldscheid, that the absence of a jurisdictional hook removed necessary limitations on the federal government’s ability to interfere with a variety of state activities in which bias was present, and again, Justice Ginsburg concurred. Waxman, however, refuted their objection, arguing, like Goldscheid, that traditional state concerns would be left to the state. (Justice O’Connor’s interaction with Waxman was also essential in the Court’s deliberation, as the majority opinion voiced questions regarding the proper balance of federal government-state separation in VAWA.)

Justice Scalia then took Justice O’Connor’s questioning further, asking Waxman to point directly to the justification he found in Lopez to back his position in support of VAWA. Waxman did so, and then concluded with the following:

[…] Our submission here today is not only that this act falls on the appropriate side of the line (between acceptable and unacceptable government action), but that the creation of a bright line test, which is quite inconsistent with this Court's historical Commerce Clause experience that simply says if you're operating in the substantial effects area and it's not economic or identifiable to a particular market, it's invalid[,] would be a very unwise rule for a number of reasons. (U.S. v. Morrison, 2000, emphasis supplied)

Waxman argued not only that the Court should uphold VAWA as a proper exercise of Congress’s commerce power, but that any type of “bright line test” – as in an empirical method by which the Court decided the constitutionality of any exercise of the commerce power – would ultimately fail in fairness. Discriminatory violence deviated and blurred any straight and bright line of substantial effect on commerce that the Court had drawn in the past, and Waxman insisted that the Court refrain, therefore, from drawing any such line again. VAWA, in his view, modeled a justiciable exception to Lopez.

c.       Michael E. Rosman (for Morrison, respondent)

Concluding oral argument on behalf of the respondent, Michael E. Rosman’s opening statement specifically addressed the questions several different justices had posed to the petitioning attorneys. “Under [the petitioners’] theories,” Rosman argued, “Congress could justify laws […] in domestic relations law, crime, tort, areas that are traditionally governed by State law. […] Congress could occupy the fields in these areas and relegate the States to a trivial and unimportant role in our Federal structure” (U.S. v. Morrison, 2000). This statement grounded his opposition to VAWA and Congress’s exercise of its commerce power in regulating discriminatory violence. Given a direct statement of Rosman’s position, justices responded with equally direct questions. Justice Anthony Kennedy asked what Rosman found objectionable to Congress’s regulation of non-economic matters. Rosman replied that such regulation displaced and wrongly violated state authority. Justice Stephen Breyer then challenged Rosman to draw his own line to delineate between local and federal regulation of commerce, to which he answered that in accordance with the Court’s decision in Lopez, non-economic matters should be left to states’ regulation, an absolute position from which he later backed away slightly. Several justices, particularly Justice Souter, pointed to the congressional findings at the core of VAWA and questioned Rosman’s apparent dismissal of the statistics and numerical facts at hand which indicated animus-based violence’s effect on commerce. Rosman acknowledged the importance of statistical findings in supporting VAWA, but insisted that Congress’s statistical findings were inconclusive in that they failed to distinguish between gender-based and otherwise-intended violence, and therefore did not establish a causal link between violence and commerce in a substantial manner.

About halfway through Rosman’s argument before the Court, Justice Stevens raised a rather unusual hypothetical scenario. “Assume a person wants to grow marijuana in his back yard,” Stevens proposed, “for his own use and for no other purpose […] does Congress have the power to prohibit that activity?” (U.S. v. Morrison, 2000). Rosman answered that no, Congress would not have the power to prohibit the activity, a response with which Justice Stevens agreed. Justice Scalia then asked if Rosman’s answer would differ if a person grew wheat, rather than marijuana. Rosman explained that because wheat can be grown lawfully, and marijuana only illegally (in the year 2000, at least), Congress could regulate the former, and not the latter, as the former is legal, interstate commerce, and the latter illegal, intrastate commercial activity subject to states’ police power. The justices seemed to agree with Rosman’s responses to the strange scenario. Later, Justice Scalia questioned if an addition of a jurisdictional requirement in VAWA would save the statute constitutionally. Rosman replied that he would need to know exactly how the jurisdictional element functioned, but that in all likelihood, a well-constructed requirement could save the statute, according to the Court’s decision in Lopez. In the closing minutes of Rosman’s argument, Justices Kennedy and Breyer moved to discuss the Fourteenth Amendment issues present in Morrison, particularly whether or not Congress, under the Equal Protection Clause, has the ability to remedy the societal inequality that victims of discriminatory violence face. Rosman argued that action to remedy social inequality under the Fourteenth Amendment must remain at the discretion of states, a position much in line with his previous comments advocating for dual federalism. Moving back to the Commerce Clause, Rosman said in closing, “This is not commerce. This is violence. This is interpersonal violence, the kind of thing the States have always had the exclusive province of regulating since the start of our country,” a forceful final statement and summary of his primary position against VAWA and Congress’s exercise of the commerce power in providing additional remedies for victims of discriminatory violence (U.S. v. Morrison, 2000).

III.     Analysis of Arguments

a.       Goldscheid

Though Julie Goldscheid made a well-researched and impassioned plea on behalf of Brzonkala, her argument was generally ineffective, and it is hardly surprising that the Court ruled against her. Goldscheid started off well, pointing directly to the congressional findings backing a link between gender-based violence and interstate commerce that would become one of Justice Stevens’ primary arguing points in his dissenting opinion, but fell off quickly when Justice Scalia raised questions about the possibility of unwarranted expansions into other areas of criminal law. Goldscheid was never able to counter Justice Scalia’s conviction that permitting VAWA to remain would open up the wider field of criminal law to federal regulation, a constitutional incompatibility with the police power of states. Chief Justice Rehnquist heavily emphasized this potential cause-and-effect relationship in the majority opinion, and it appears that Justice Scalia’s argument prevailed over Goldscheid’s insufficient responses to the contrary.

In the second half of Goldscheid’s argument, she mentioned that 38 Attorneys General submitted amicus curiae briefs to the Court in support of VAWA and the case of the petitioners. She referenced these briefs in an effort to demonstrate a cooperative and complementary relationship between state and federal governments in regulating interstate commerce through providing additional remedies for victims of discriminatory violence. Ironically, however, the briefs of states’ Attorneys General serve as much to refute Goldscheid’s argument as they aid it. The involvement of Attorneys General in principle suggests that the issues involved are of a particularly state concern, and perhaps less significant federally, quite the opposite of what Goldscheid attempted to indicate. She experienced tremendous difficulty in explaining to Justice O’Connor why upholding VAWA would not leave other traditional areas and concerns of the state vulnerable to federal interference, another argument weaved eventually into the majority opinion. Goldscheid even failed to persuade Justice Ginsburg on this point, who eventually voted in her favor. Goldscheid’s argument, though well-intended, was generally unpersuasive and fell short in several areas of internal contradiction, undoubtedly contributing to the Court’s ruling for the respondent.

b.      Waxman

As should be expected of the Solicitor General, Seth Waxman made a compelling argument for the United States which redeemed some, but not quite enough, of what Goldscheid lost. Waxman was both bold and wise to face Lopez, the Court’s most recent precedent and greatest statement against his case, directly and specifically explaining why VAWA might fall outside of what the Court had ruled in the past. His rationale for asserting that VAWA did not need a “jurisdictional hook” – discriminatory violence occurs unpredictably, in a variety of settings, by and to various persons, under a multitude of circumstances – was well-made and logically sound, and though it failed to convince Justice O’Connor otherwise, effectively demonstrated why VAWA might not need a jurisdictional hook to still qualify as a constitutional exercise of Congress’s commerce power. Later, Waxman argued that a “bright line test” used to determine whether or not Congress could regulate matters affecting interstate commerce would eventually fail. Though the Court ruled against the United States and upheld a relatively bright line test as first enumerated in Lopez, Waxman’s argument remains valid. The significant size alone of the judicial record of cases heard before the Court involving the Commerce Clause suggest that lines for evaluating the separation of federal and state involvement in interstate commerce are continually subject to change and interpretation, due both to continuous personnel changes on the Court and the relative absence of a clear, majority-authored doctrine of precedent generally applicable to all relevant cases of a commercial nature. It was clear that Waxman new Lopez very well, and he successfully toed the line between respecting the Court’s previous decision and calling for an exception to it. In the end, however, Lopez, in the spirit of stare decisis, proved an insurmountable foe, and rightly so, perhaps. Waxman argued effectively, but could not muster the support to overturn precedent which squarely opposed his position.

c.       Rosman

Michael Rosman had the good fortune to argue his position last before the Court, and he took full advantage on behalf of Morrison. By providing answers in his opening statement to justices’ questions asked previously, Rosman made it clear from the start why and how he disagreed with the petitioners. He stated plainly that allowing VAWA to remain would leave much of the realm of criminal law vulnerable to further federal regulation and would relegate the states to a powerless position in the national hierarchy, responses to previous questions by Justices Scalia and O’Connor that helped shape the majority opinion. Rosman made his argument against VAWA without equivocation. When baited by Justices Breyer and Souter to reconsider his position in light of the congressional findings behind the statute, Rosman stood firm, challenging the legitimacy of the findings and denying that non-economic matters had a substantial effect on interstate commerce. (Eventually, Rosman backed down from this absolute position, admitting that some non-economic matters might have some effect on commerce, but only after demonstrating that discriminatory violence did not qualify as an appropriate non-economic matter of influence.) Rosman’s most impressive performance, however, came in his response to Justice Stevens’ strange hypothetical scenario about the commercial regulation of an illegal marijuana farm. In posing the scenario, it appears that Stevens, without any larger intention, aimed to see how far and how consistently Rosman might maintain his argument against non-economic regulation, even in a situation of competing illegality. Rosman’s answer was so well-taken that Stevens openly agreed with his response later in the argument, despite eventually voting against him. Rosman also effectively refuted any reasoning for VAWA that could be found under the Equal Protection Clause, using a separate constitutional area to bolster his position on interstate commerce. His treatment of equal protection and commerce followed a consistent line of thought: given discriminatory action of a violent nature, the best remedies occur locally in the various states, and not through congressional action. Rosman’s eventual victory was well-earned.

IV.    Impressions and Learning Outcomes

Generally, I found the oral argument in Morrison intriguing, particularly in the justices’ attempts to narrow and explicate the positions of the attorneys arguing. It is clear that the argument significantly influenced the majority opinion, and that the Court, much like the attorneys arguing, held a wide breadth of opinions and views on the issues involved in the case. I was particularly impressed with Justice Scalia’s ability to challenge the attorneys present to think quickly and avoid traps toward which he often steered them. Often, Scalia would coin a rather blunt phrase or say something entirely contrary to expectation (at one point, for example, in questioning General Waxman, he referred to states as “bad actors” and asked what could be done to fix them) just to see how the attorneys would react. The same could be said of Justice Stevens’ marijuana farm scenario, a humorous and interesting dialogue that Rosman seized upon and utilized to cement his, and the eventual majority’s, position.

I take away three primary ends of learning after reading, listening, and analysis of Morrison. First, in regard to the general procedure of Supreme Court oral arguments, it is of utmost importance for attorneys to answer the questions and queries of justices at argument in a specific and direct manner. It is evident that justices often have a pre-conceived feeling toward a particular case before argument, but the questions they ask are often as much for their own benefit of understanding as they are challenges of the positions that attorneys present. Successful answers to justices’ questions can win cases, as was true with Rosman and his answers to questions about federal expansion into criminal law and marijuana farms; indirect or insufficient answers, however, as in the case of Goldscheid and her inability to explain to Justice O’Connor why VAWA would not have a damaging effect on other issues of state concern, can work to attorneys’ detriment and loss. Second, Morrison demonstrates an instance in which stare decisis functions to its fullest and strongest extent, an excellent example of the force and power of precedent. Lopez was an extremely important Court decision that established a well-designed framework for deciding cases of federal regulation of interstate commerce, and the majority’s adherence to Lopez is a commendable model of Court function. With this point, however, comes a caveat and final learning outcome. As General Waxman argued convincingly, a “bright line test” cannot serve to guide the Court’s evaluation of federal-state relationships in interstate commerce in every circumstance. Though Lopez remains a useful framework to which a statute remedying discriminatory violence was not a proper exception, the ebb and flow of interpretations of “substantial effects” on commerce will forever remain a hermeneutic battleground in Court deliberations, and additions and subtractions to and from Lopez can be expected in rulings on the constitutionality of commercial regulation to come. Though discriminatory violence was not an exception to the rule, some other activity certainly could be.













United States v. Morrison, 529 U.S. 598 (2000).