Summary and Analysis of Oral
Arguments
William Gohl
POL 400 – Constitutional Law
Dr. Jim Riley
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
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
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
Solicitor General Seth P. Waxman followed
Goldscheid on behalf of the
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. (
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?” (
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
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.
References