0:00:02.0 S?: We'll hear argument now in number 99-5, United States v. Antonio J. Morrison.

[music]

0:00:09.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about US v. Morrison, a case about the 1994 Violence Against Women Act. The case is also about the Interstate Commerce Clause and whether the billions of dollars the US economy loses because of gender-based violence should count as commerce. In a 5-4 decision, the Supreme Court said no, making it impossible for victims of gender-based violence to sue for damages in federal court.

0:00:40.4 S?: Congress enacted the Civil Rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy, discriminatory gender-based violence.

0:00:54.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our freedoms to fade away like the colors of a painting in the sunlight. I am Peter, here with Michael.

0:01:20.6 Michael: Hey, everybody.

0:01:20.5 Peter: And Rhiannon.

0:01:20.6 Rhiannon: Hi, hello.

0:01:22.0 Peter: I thought that intro was strangely beautiful.

[laughter]

0:01:26.7 Rhiannon: Interesting that you say it about your own writing, but... Yeah, sure.

0:01:29.8 Michael: Very strong imagery.

0:01:31.6 Peter: That's right. Today's case is US v. Morrison. This is the case about the Commerce Clause, but also violence against women. This is a case about the intersection of commerce and violence against women, and we will clarify momentarily. In 1994, Congress passed the Violence Against Women Act, a bill co-sponsored by Joe Biden that provided funding for the investigation and prosecution of domestic violence and allowed victims of domestic violence to sue for money damages in federal court. There is one thing you have to understand about the Constitution for this case. The federal government can only do things the Constitution specifically says it can do, so every time Congress passes a law, it has to explain in the law, where in the Constitution it says that they have the power to pass that law.

0:02:28.5 Peter: One thing that the Constitution says Congress can do is "Regulate commerce among the several states." This is known as the Interstate Commerce Clause, or just the Commerce Clause. The idea is very simple, if something concerns the economy of one state, that's the state's business and the federal government can't pass laws about it, but if something concerns the economies of multiple states, then that is a federal issue, makes sense? Should be simple enough.

0:02:53.9 Rhiannon: Sure.

0:02:54.9 Peter: The idea is that as soon as economic activity crosses state lines, it's now a federal concern that can be regulated by the federal government, but the contours of this have been a legal battleground for many years, because especially as economies have grown more complex and expanded, it's become less and less clear when economic activity can be said to occur solely within a state as opposed to among multiple states. And conservatives who do not want to see a powerful federal government have long been arguing that we should read this very narrowly so that Congress cannot pass too many sweeping laws.

0:03:32.5 Peter: This case is one of the many times the conservatives on the Court have made up a new and arbitrary rule to try to limit the ability of Congress to legislate, with the goal of hampering progressive legislation. So we're going to talk about the Violence Against Women Act, what Congress is trying to do and how the Court interferes, and we're also going to talk about this much bigger picture concept about the scope of the federal government's power under the Commerce Clause, which is a trip into one of the most heated, pedantic and pseudo-academic debates in the legal world.

0:04:07.6 Michael: I'm excited, guys, this is like my wheel house.

[laughter]

0:04:12.8 Rhiannon: Michael's got something to say.

0:04:14.6 Peter: So one note we should make here up top is that the connection between violence against women and the Commerce Clause, it's obviously not really intuitive if you're not a lawyer, but bear with us. We will get you there. The gist of it is that gendered violence drives down women's participation in the economy and costs the economy billions of dollars a year. Women turn down jobs because of the threat of violence, they miss out as consumers because of partners who control their finances, on and on and on, and the scope of the impact of all this gendered violence crosses state lines. All of this was documented by Congress and used as their justification for passing the law. We will give this a little more color as we go on.

0:05:02.6 Rhiannon: Right. So VAWA, like Peter said, was passed in 1994.

0:05:07.1 Peter: Whoa, whoa, whoa. Whoa, whoa. Can't just bust out an acronym like that...

0:05:10.3 Rhiannon: I thought you said it.

0:05:11.3 Peter: I didn't say VAWA, I'm not in the know like that.

0:05:15.8 Rhiannon: Okay, so VAWA, which is the Violence Against Women Act, like Peter said, was passed in 1994, and it was actually passed after more than four years of congressional deliberation with numerous hearings and fact-finding proceedings leading up to passing the law. And this was congressional deliberation that explored the national problem of violence against women. In passing VAWA, Congress called domestic violence "a national tragedy played out every day in the lives of millions of American women at home, in the workplace and on the street." And so the law contained multiple provisions that were aimed at addressing violence against women in the United States.

0:05:58.2 Rhiannon: For example, between 1994 and the year 2000, the law provided $1.6 billion to fund a range of programs, including improving victim services, creating a National Domestic Violence hotline, and new initiatives to improve law enforcement's response to crimes like domestic violence and sexual assault. It created new federal felonies to address acts of interstate violence, and it had provisions to support immigrant women who were victims of domestic violence, it helped them in obtaining legal status, and then there were also research provisions to advance our national understanding of domestic violence and gender-based violence in the US.

0:06:42.8 Michael: Sounds like a pretty good law.

0:06:44.9 Rhiannon: Yeah, it was complicated, for sure. Complicated and comprehensive.

0:06:49.2 Peter: Yeah, Joe Biden, of course, co-sponsored the bill, and he famously said, "Come on, man. We need a law," you know.

0:06:57.6 Michael: No more of this domestic violence malarkey.

0:07:02.1 Rhiannon: Boys, they're doing malarkey.

0:07:03.8 Peter: Women across the country, I mean, come on.

0:07:07.7 Rhiannon: Again, thank you so much, Joe Biden. So the provision of VAWA that's at issue in this case provided for a civil cause of action for victims of gender-based violence in federal court. What that means in plain English is if you were a victim of gender-based violence, you could sue the perpetrator of that violence for damages, and that was even if no criminal charges had been filed against that person. And just want to note here that Congress carefully drafted and articulated all of these provisions in much the same way that Congress drafts lots of Civil Rights legislation, with an eye towards targeting only specific behavior that is clearly discriminatory, and it did so after hearing tons of testimony about the way violence against women interfere with women's full participation in the economy and public life, and it did so after hearing about the discriminatory manner in which states have treated gender-based claims historically.

0:08:10.2 Rhiannon: So Congress concluded after all of this testimony, after all of the fact-finding, that states weren't doing a good enough job at addressing gender-based violence, and so it created this cause of action. So we have that sort of statutory background that's the status of the law at this time, so turning to the facts of this specific case. What happened was just months after VAWA was passed and enacted in the fall of 1994, a freshman at Virginia Tech named Christy Brzonkala reported that she had been repeatedly sexually assaulted by two fellow students, Antonio Morrison and James Crawford.

0:08:48.5 Rhiannon: Morrison and Crawford were members of Virginia Tech football team, and according to Christy Brzonkala's reports, they gang-raped her in her dorm room some 30 minutes after the three of them met for the very first time.

0:09:01.5 Michael: Jesus.

0:09:02.9 Rhiannon: And so she reported this sexual assault to the school, and Virginia Tech conducted disciplinary hearings. As a result of those school-led hearings, Morrison was suspended and Crawford ended up not being disciplined. Actually, in fact, eventually after an appeal, Morrison's suspension was overturned. Local law enforcement didn't really do anything with Brzonkala's report either, a grand jury did not indict them for criminal charges, so no criminal charges were filed against either Morrison or Crawford, and meanwhile, Brzonkala became increasingly depressed and in fact she attempted to commit suicide. Eventually she withdrew from Virginia Tech, and with no help or support from local law enforcement or the school, Brzonkala eventually filed suit in federal court.

0:09:57.3 Rhiannon: Now, she brings two cases: She sued Virginia Tech, the school, under Title 9, and we won't discuss that here, that's a different case, it's a different law, but she also sued Morrison and Crawford individually under this new provision of VAWA that had just been enacted. So when the Fourth Circuit Court of Appeals ruled on Brzonkala's case, they said that her lawsuit couldn't go forward because this part of VAWA was unconstitutional. And Brzonkala appealed to Supreme Court. You'll notice that the case is called the US v. Morrison, that's because the federal government actually intervened to defend VAWA, so they became a party to the case, and that's how you get US v. Morrison.

0:10:41.5 Peter: So Congress has passed the Violence Against Women Act, VAWA, which allows women to sue in federal court, and they say that they had the power to do this, to pass this law, because the Constitution allows them to regulate interstate commerce, and as their law explains in detail, violence against women has a widespread impact that substantially affects interstate commerce. For example, you have the various ways in which domestic violence impacts women's ability to find employment or to engage in the workforce, and it impacts their productivity. These are all things that we'll talk about in a bit that Congress finds, but the Supreme Court says, no, you can't do that, because violence against women isn't itself really economic activity, it's not really commerce, and so that doesn't count as something you can regulate.

0:11:31.1 Peter: I want to also note, there's an Equal Protection argument, Congress says that they also have the power to pass this under the Equal Protection argument. We'll touch on this later. It's a complex and academic topic, but I don't want the nerds to think that I'm ignoring it, we're going to get to get to it, we'll get to it at the end, right. Relax.

0:11:47.3 Rhiannon: Do not yell at us.

0:11:49.1 Michael: Or we'll yell back.

0:11:50.4 Peter: That's right.

0:11:51.6 Michael: You are like that.

0:11:52.0 Peter: So to make sure we're all on the same page here, the Constitution again has this clause called the Commerce Clause, and basically the rule, the legal rule is that the states can regulate economic activity that happens in their states, but if there's economic activity that happens across multiple states, then the federal government regulates that. But what exactly it means for commerce to be taking place solely in a state as opposed to in multiple states has become less clear as economies have become more complex. Back in the day, it might have been relatively simple. At the time of the Founding, there were two basic types of businesses, agriculture and prostitution, and this is not based on a lot of research, I'm just kind of eye-balling this.

0:12:37.9 Peter: So there would be a guy in your town with a beef steak tomato farm, and he would go to the town center to sell them, and you would buy 14 of them so that each member of your family, which had 14 people in it, could eat a single beef steak tomato for dinner and...

0:12:51.5 Michael: The farmer could sleep with a prostitute.

0:12:54.9 Peter: And the farmer would use that money to go to the brothel or the house of ill repute nearby, and he would have sex with a prostitute. All of that is happening entirely within your state, so the federal government can't regulate that, but if the tomato farmer crosses state lines to sell his tomatoes, then the federal government is allowed to regulate that. Same applies to your basic prosecuting operations.

0:13:21.0 Peter: So think about that tomato transaction now. You go to a grocery store to buy a tomato. That grocery store's headquarters is probably in another state, it probably has operations across multiple states, it probably uses technology that sends data across multiple states. The workers might cross state lines to get to work depending on where you are. The tomato itself has almost certainly crossed a state border. The development of the economy has meant that people and things and information are crossing state lines all the time, and what that means is that as the economy has developed, the federal government's power to regulate the economy has grown.

0:13:57.6 Michael: Right, right. And so in the '30s, the New Deal had resulted in all sorts of new federal laws, the Supreme Court started striking some of them down, claiming that the federal government was exceeding its power to regulate interstate commerce. In 1936, the Court struck down federal regulations on mining, saying that mining was not commerce, even though the commodity being mined was going to be sold across state lines. That seems maybe a little pedantic, but conservatives at the time were really concerned about the size of the federal government during the New Deal and how it was going to explode, and they were looking for anything they could find to rein that in.

0:14:41.9 Michael: And so that's, FDR as a result starts applying political pressure to the Court, he threatens to pack it with more Justices in order to preserve his legislation.

0:14:52.7 Peter: That's right. Get their asses, bro.

0:14:54.7 Michael: Yeah, that's right. Pack the courts.

0:14:57.1 Rhiannon: How's a little political power feel, huh?

0:15:00.5 Michael: Good positive history in our country. And Court bent to that pressure. In a case called NLRB, the National Labor Relations Board v. Jones & Laughlin Steel, the Court held that the federal government could regulate activities that had a substantial effect on interstate commerce, so not necessarily just like that transaction, but like anything that affects interstate commerce. And then for many decades after, basically up until this case, and maybe just a few years before, there were just no decisions limiting the federal government's power under the Commerce Clause, but during much of that time, the conservative legal movement was being built from the ground up, and they were mad as hell about the fact that the federal government could regulate anything that impacts commerce, even if it's sort of indirectly so.

0:15:52.5 Michael: They didn't like seeing the federal government handed the keys to all this power, and especially since this power that's historically been used to pass progressive legislation, right.

0:16:05.6 Peter: So the sort of next part of this story is that in 1990, the federal government passes a law about gun violence, and they argue that their power to pass that law comes from the fact that gun violence impacts commerce between the states and in 1995, for the first time in nearly 60 years, the Supreme Court strikes down a federal law under the Commerce Clause. And that gets the ball rolling here, right, the first blow struck by the nascent conservative legal movement against the power of the federal government under the Commerce Clause. And that brings us here to this case.

0:16:39.1 Rhiannon: Guys, I just feel like I'm really being brought back to 1L con law, this is a blast from the past, all these cases that we're talking about. Did you guys spend half of con law talking about the Commerce Clause?

0:16:54.9 Michael: Yeah, my con law was mainly Commerce Clause and Equal Protection, Fourth Amendment fundamental rights stuff.

0:17:01.8 Peter: I zoned out for most of con law. I'm good at studying. The last two weeks were all I needed, I would really pack it in, so I don't really remember what the discussions were throughout the year, unfortunately.

0:17:13.0 Rhiannon: That's great. Peter went to an Ivy law school... Went to an Ivy law school and does not remember discussions had, which I think is beautiful, and that's why he's the Law Boy.

0:17:26.2 Peter: I remember the vibes, though, I remember the vibes.

0:17:30.6 Michael: There was a Yale law grad on Twitter who was marveling at the fact that the bottle of shampoo he purchased in use for months was dog shampoo, and the only indication of that was the fact that there was a large photo of a dog on the bottle.

0:17:49.8 Rhiannon: Yeah, that's why Ivy grads are stupid. I like that, alright.

0:17:54.0 Michael: Yeah, let's not give Ivy law grads too much credit here.

0:17:58.2 Peter: Yeah, but he probably graduated towards the top of his class. That's the thing is, if you're at a top school and you go to the top of the class, those kids are freaks, alright, those kids are weird as hell. You gotta go down towards the middle, alright, for the cool kids. That's where I was, just hovering with the masses, man of the people.

0:18:19.2 Rhiannon: Keep telling yourself that, buddy. Yup.

0:18:21.3 Peter: Oh, yeah, sorry, sorry, Rhi, I forgot that you went to an everyman law school, that everyone can get into.

0:18:28.5 Rhiannon: Shut up. Shut up.

0:18:31.7 Michael: A friend told me a story once about how there was a kid in her law school class who would bring a Snickers bar into every exam and he would cut it into thirds, I think it was, or quarters, and then every 30 minutes or whatever, he would eat one piece of it.

0:18:48.7 Peter: Jesus Christ.

0:18:51.8 Michael: Yeah, the punchline of the story was that he ended up with Supreme Court clerkship, so...

0:18:52.7 Peter: Yeah. Oh, my God.

0:18:57.4 Michael: That's the elite, the legal elite.

0:19:00.0 Peter: By comparison, my last 1L final, I brought whiskey and I poured it like three quarters of the way through the exam, and I was like, I'll be fine.

0:19:11.9 Peter: Alright, we are now in the year 2000, this case. Congress has passed this law designed to combat violence against women, which gives them the right to sue in federal court. Like I mentioned, when Congress passes a law, it needs to point out what part of the Constitution gives it the authority to pass that law, and they claimed that their constitutional authority derives from the Commerce Clause and their power to regulate interstate commerce. What they say is that violence against women has a significant impact on commerce, and they submit a massive amount of evidence to support that.

0:19:44.1 Michael: Right. So just to cut in, Rhiannon said that Congress spent four years developing this and holding hearings, and just to go over some of their findings, sort of substantiating this link between gendered violence and interstate commerce, they found that it's like billions of dollars a year in lost productivity and wages, for a variety of reasons. 50% of rape victims end up losing their jobs, the ones who keep their jobs have decreased productivity, victims of domestic violence likewise have lots of absenteeism and sick time because either they can't leave their homes or they don't want to go into work because the bruises and the cuts from the domestic violence are visible and they want to hide it.

0:20:37.2 Michael: On top of that, even women who were not themselves victims of gendered violence nonetheless have it shape their participation in the economy because they'll turn down better paying night jobs or jobs in the areas of heightened risk, which Congress found were justified fears, that later hours or working downtown or whatever, you're more likely to be the victim of gendered violence. So it's just massive, the impact gendered violence has on the economy was just demonstrably massive.

0:21:11.0 Rhiannon: Yeah, it's hard to even come up with words for how sort of everyday and pernicious gender-based violence is, and I think it's important to highlight that whether or not you think VAWA and all of its provisions were very good at addressing gender-based violence, I have my own views about, say, sending a bunch of funding to local law enforcement and saying that police should handle domestic violence cases in specific ways, but it was Congress looking at this issue for a long time and realizing how bad, how massive the impact is on the nation's economy and trying to address that with a sort of comprehensive legislative scheme that would allow women in different ways to combat the reality of living in a rape culture and a culture sort of built on the oppression of non-men.

0:22:09.0 Peter: I think, to agree, this is sort of common sense. Of course, being the victim of discrete acts of violence or continued acts of violence is going to impact the degree to which you are engaging with the workforce or the broader economy, right, that does feel to me like common sense, and it's backed up by hard data. So basically, Congress saying that even though they are not regulating commerce directly through VAWA, they're regulating it indirectly. And the Supreme Court rejects this in a 5-4 opinion written by Chief Justice William Rehnquist.

0:22:43.0 Peter: The legal rule created by earlier Supreme Court decisions is that if something "substantially affects" interstate commerce, then Congress can regulate, even if it's not commerce itself. And the Court can't say that violence against women doesn't substantially affect interstate commerce, because Congress has a huge amount of evidence that it does. So what they say is, look, violence against women is not economic activity, and so it's not covered by the Commerce Clause. Specifically, Rehnquist says, "Gender-motivated crimes of violence are not in any sense of the phrase economic activity."

0:23:27.6 Michael: It's a shame that Congress tried to pass this law under the Economic Activity Clause.

0:23:35.9 Peter: The first thing to note here is that that's not the rule. The rule is supposed to be that Congress can regulate things that substantially affect interstate commerce. The Rehnquist Court has made up the economic activity versus non-economic activity distinction. But more importantly, and more essential to the issue here, the idea that gender-motivated crimes are not "in any sense of the phrase economic activity" is something that just about any fucking honest economist will tell you is incorrect. Everything you do has an implied cost and a nominal impact on the economy. Whether or not someone is directly engaged in the exchange of money for goods and services, they are essentially always, or at least often engaged in the economy in some material way.

0:24:23.2 Peter: I'm not saying Congress should be able to regulate everything, the rule is that there must be a substantial impact on interstate commerce, but at the very least, there is no clear distinction between what you might call economic activity and non-economic activity. If someone obstructs a highway, which prevents people from getting to work or conducting business, can Congress step in and regulate that? Yes, because the highway is what the law calls a channel of interstate commerce, which everyone agrees they can regulate, and yet when domestic violence prevents people from working or conducting business, that is somehow according to the conservatives on the Court non-economic activity. Yeah, the distinction is meaningless, and the Court's made up rule is just pure sophistry, it is the output of a conservative legal movement that has been desperate to create some sort of rule that would limit the federal government's power, and after failing to come up with something good settled for this contrived bullshit that sounds like the most obviously incorrect multiple choice answer on a bar exam.

0:25:33.3 Michael: Right. And I think the facts of this case are a great example of how bullshit it is, because going to college is absolutely economic activity, it totally determines how and whether you can participate in the economy. And this woman dropped out of college as a result of this. Whether or not you're depressed impacts whether and how you can participate in the economy, and she became seriously depressed, right, suicidal. That is incapacitating. This is a person who has been effectively taken out of the workforce for some indeterminate amount of time, and when she re-enters is going to be in a substantially different economic position because of where her education stopped.

0:26:22.4 Michael: That is economic. There's just no way around it. And like this is such bullshit on their part too, 'cause it's like, it's just not their job. The Supreme Court does not do fact-finding, it's like the last thing they're supposed to do, and it's so dishonest, they quote themselves saying, look, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. But that case, first of all that's bullshit, but that case they were talking about when Congress had no findings at all.

0:26:58.6 Peter: And I want to give a little bit of color here, because in the prior case that, the Lopez case from 1995 about gun violence, Congress hadn't submitted any evidence that linked commerce to gun regulation. They just said, well, it impacts it, right, and that's why in this case, they submitted a huge amount. And Rehnquist is like, no, I don't think so, though.

0:27:18.9 Michael: Yeah, that quote makes sense in the context of that case because that was a law where Congress hadn't submitted extensive findings, and so it's like, yeah, if Congress just says this impacts commerce and doesn't back it up at all, sure, the Court might disagree, but that's not the case here. The case here is that Congress had substantial, like overwhelming evidence that this greatly impact interstate commerce, and the Court was just like, nah. And this is like... We've seen this in other cases we've discussed, in Shelby County v. Holder with the Voting Rights Act, where Congress submitted months of finding from hearings and studies and all this, thousands of pages about why their formula was correct, and the Supreme Court was like, no, I just disagree.

0:28:08.2 Michael: And it's just the height of judicial activism, it's the height of judicial law-making, of usurping Congress's role in legislating. And we talk about the importance of recognizing that courts do that, but it's just so important to call out when the conservatives who supposedly hate that stuff are engaging in it so egregiously, which they are here.

0:28:34.6 Rhiannon: Right, exactly, and I think this case also shows how the Rehnquist Court viewed violence against women like this exclusively domestic, private issue rather than a society-wide problem that warrants public government involvement, which is what Congress showed. Like Michael, you talked about the facts of Christy Brzonkala's case showing that absolutely she was participating in economic activity, and how gender-based violence took her out of that economic activity.

0:29:07.8 Rhiannon: What Congress did in passing the law and holding all of these hearings was showing how widespread exactly Christy Brzonkala's case was, that it was happening across the country and having a significant impact on the economy. And so the perspective from the Rehnquist Court that violence against women is just like this private matter that happens at home, that's significant because it influences how federal and state powers work together on an issue. Like if something is a purely domestic issue, if it's purely a private problem or at most a problem that is already addressed by state criminal law or local law enforcement, then that's not an issue that the federal government has the power to regulate or influence, that's outside the scope of the federal government's power and Congress's law-making ability, sure.

0:30:00.5 Rhiannon: But it's important to highlight, but this is a misogynistic viewpoint to deny how widespread and toxic and deeply pernicious violence against women is, and that's what's predicating this argument about federal versus state power. In minimizing how damaging and dangerous the reality of domestic violence is, the Supreme Court sort of gets to shoe horn in this conservative viewpoint on federalism.

0:30:26.1 Michael: Yeah, no, I think that's exactly right, Rhi. And I think it's very endemic to the conservative world view, where they sort of reject systemic explanations and systemic approaches to things and try to make everything this atomized, individual inquiry, like racism is a question of what's in your heart. And it's something you see consistently across sort of domains in conservative legal thinking, and so you see it here where like domestic violence, the idea that that's some big nationwide issue, like a larger cultural institutional issue that requires big legislation to ameliorate and to fix is just something that they flatly reject.

0:31:18.4 Peter: It's a core tenet of conservative politics that you reject the structural problem and re-frame it as an individualized problem. It's like unemployment, right, when unemployment spikes, is that a structural problem that needs to be addressed with broad sweeping legislation? No, no, no. It's lazy people.

0:31:38.7 Michael: Right. And the environment is like, turn off your lights and recycle, not like we need to regulate companies and make sure that they're using...

0:31:49.5 Peter: Exactly. And racism, is it something that needs to be addressed with something big, like maybe reparations or something that looks like that? No, no, it's just get your vibes right, bro. Just sort of reframe your vibes and you'll be good. So again, we have the conservative Court here saying that Congress can't regulate domestic violence in this way by making up this sort of fictional distinction between economic and non-economic activity, and they're saying, well, domestic violence, that's non-economic activity.

0:32:21.0 Peter: And the fact that the conservatives essentially made up a new and arbitrary rule to limit the power of the federal government to pass laws, very telling. The Constitution says that the feds can regulate commerce between the states; like I mentioned back in the day, that might have meant only a few things, but in the modern economy, it means a huge amount, people, goods, data, all crossing state lines constantly. And that means that the federal government's power has grown, and conservatives don't like this, because historically, the feds have used that power to pass progressive legislation.

0:32:56.0 Peter: But that's not an actual constitutional reason to strike laws down. They're just frustrated with the reality here, the reality of the implications of the Commerce Clause. And so they're engaging in what they claim to hate, traditional policy-making. And this opinion is rife with it. Rehnquist is basically saying, well, look, if the federal government can regulate everything that substantially impacts commerce, they're going to have too much power. And it's like, well, that's not really your job to decide, that's not the Court's role.

0:33:27.9 Peter: How many times have we heard the conservatives basically say, well, whether or not this is good policy is irrelevant. Our job is just to correctly interpret the Constitution. And yet here they are, oddly rejecting that train of thought when the outcome is something that benefits the left. They're actively doing living constitutionalism, the very thing that originalists claim to hate. Living constitutionalism is the idea that our understanding of what the Constitution means should evolve over time. That's what they're doing here. The bottom line is they're saying, look, the social context has changed enough that we shouldn't read the Constitution so literally, which I don't find to be in and of itself particularly offensive, but I'd like to see them admit what they're doing.

0:34:11.6 Rhiannon: Right, just be real about it.

0:34:13.2 Michael: Absolutely.

0:34:14.5 Peter: I also want to point out some of the historical context for their opposition to federal power under the Commerce Clause. 'Cause I think you can think about like, well, interstate commerce, it all seems maybe a little bit abstruse, maybe a little bit like I don't know how much this matters. In 1964, there was a case called Heart of Atlanta Motel v. United States. That was a case where hotel owners in the South who wanted to discriminate against black people in their business sued the federal government saying that they did not have the power under the Constitution, under the Commerce Clause to pass the Civil Rights Act. Part of the Civil Rights Act of 1964 was a law saying that places of public accommodation such as hotels could not discriminate on the basis of race. And Congress said their power to do that was found in the Commerce Clause. Hotels, they accept people that have been traveling between states and therefore they could be regulated under the congressional power to regulate interstate commerce.

0:35:09.0 Peter: And the Supreme Court agreed, upholding that pivotal civil rights legislation. And conservatives quietly bristled, maybe not so quietly at the time, but they're a little quieter about it these days. They didn't want the federal government using its commerce power to pass what they view as sort of socially progressive legislation. And the same thing is happening here, the conservatives are upset that the government is passing socially liberal legislation, and they're trying to throw as many wrenches at it as possible.

0:35:40.5 Rhiannon: Yes. And I think it's important to talk about the impact of US v. Morrison on women and what remedies were left for victims of gender-based violence if this provision of the law was deemed unconstitutional. I think a lot of people have rightly pointed out that the case has a much bigger impact really on Congress's ability to pass laws under the Commerce Clause, rather than just taking away all of the remedies available to these victims. And that's because states have their own statutory schemes addressing gender-based violence. Depending on what state you're in, you can sue in state court. And certainly, there are state criminal laws that have been beefed up to address domestic violence more seriously.

0:36:24.5 Rhiannon: But I do think there's discussion to be had about what it means to women to treat gender-based violence as a violation of your civil rights. And that's what this provision of VAWA was passed as. This is very similar and mirrors Civil Rights legislation, like Peter was just talking about. One of the ways that we show as a society that we are taking a problem seriously is by enacting legal accountability. It's symbolically and culturally important to have laws that address problems because it shows that sort of government and stakeholders and everybody are taking the problems that citizens face seriously. It's saying gender-based violence is incredibly degrading and dangerous, and because that is so, you have this legal accountability mechanism. You can go to federal court and get damages for the harm that you have experienced. And I think that impact is significant, that we don't have that because it shows the Court is not taking this problem seriously.

0:37:34.5 Rhiannon: The legislative history for VAWA as a Civil Rights remedy shows that Congress was responding to the effect of discriminatory, gender-based violence on women's full participation in commerce. For example, documented in this legislative history was that gender-based violence deters women's movement. It keeps them from walking at night, even in their own neighborhoods. It restricts their use of public transportation, which limits where and when they'll travel. There was documentation that gender-based violence reduces consumer spending, showing that women, for example, don't go to movies alone after dark.

0:38:15.2 Rhiannon: And just like the impact of race discrimination on racial minorities in their choice of jobs, Congress also documented in passing VAWA that gender-based violence deters women from taking jobs in certain areas or at certain hours, like Michael said earlier. And so overall, this is like this broad conclusion that gender-based crimes and fear of those crimes restricts movement, reduces employment opportunities and reduces consumer spending. And so, as a woman, you think, okay, what is my remedy for that happening to me? If my movement has been restricted, if my employment opportunities have been restricted, if my consumer spending and participation in the economy like I please, if that has been limited because of gender-based violence, because of this discriminatory violence against me, where is my remedy? What law allows me to sue for that, right?

0:39:09.5 Rhiannon: And so, I think it's important to just highlight that, yes, while there are other remedies available, like criminal law or state statutory schemes for being made whole after suffering gender-based violence, I think the impact in this provision of VAWA being found unconstitutional is really in what it demonstrates about our government and the society not taking this seriously.

0:39:35.8 Michael: Right. And it's worth mentioning that part of the motivation and part of the congressional findings behind this law was that those alternative remedies often are no remedy at all.

0:39:47.0 Rhiannon: Yes, exactly.

0:39:48.6 Michael: That the same biases that create gendered violence in the first place are also endemic among police officers, among prosecutors, among judges and juries and court employees and everyone, and so those remedies don't become available. There was a Senate report in 1991 that said study after study commissioned by the highest courts of the states, over 20 states from Florida to New York, California to New Jersey, Nevada to Minnesota, has concluded that crimes disproportionately affecting women are treated less seriously than comparable crimes against men. And further, that collectively, these reports provide overwhelming evidence that gender bias permeates the courts system and that women are most often its victims. And so I think it's fair to say that this Supreme Court case, rather than engaging with those facts, is like an example of that bias.

0:40:51.5 Rhiannon: Yes, yes.

0:40:51.5 Michael: This is that same permeating discrimination that sort of downplays the harms and impacts of gendered violence.

0:41:00.7 Rhiannon: Right, right. And that's exactly what Congress was trying to point out. But yet again, in this case, you have the Court stepping in and sort of claiming expertise where they don't have any and denying this really extensive fact-finding.

0:41:13.1 Michael: Yeah, that's right.

0:41:15.5 Peter: Although to be fair, William Rehnquist might have a kind of expertise in domestic violence...

[laughter]

0:41:24.1 Michael: Yes. Yeah.

0:41:24.2 Rhiannon: It doesn't matter 'cause that motherfucker is dead.

0:41:26.0 Peter: That's right. To the lawyers of his estate, I said "might."

[laughter.

0:41:33.8 Peter: There's also a much bigger picture issue here. The impact of this case is not limited to domestic violence issues. Like we said, Congress has historically used its commerce power to pass progressive legislation, from the labor rights laws of the New Deal to the Civil Rights Act, and then in the '90s, to guns and domestic violence regulations. What the conservatives are doing in this case is arming themselves. They're giving themselves a weapon to wield against progressive legislation in the future. And we've already seen it used, our sixth episode was about NFIB v. Sebelius, a case about Obamacare, and there we explained how the Court claimed that the federal government did not have the power to regulate aspects of the insurance market.

0:42:18.3 Peter: The stakes here are huge. If and when Congress ever steps up and passes Green New Deal legislation, for example, there's almost no question that aspects of it will be challenged under the Commerce Clause. The conservatives have taken their control of the Court over the last several decades and turned it into a bulwark against progressive legislation, really usurping Congress's ability to pass laws and placing it in the hands of five and now six conservative Justices.

0:42:47.0 Michael: Right. When we were preparing for this episode, we talked about this case as sort of like one of the first instances of the conservative Court really starting to flex its muscle. And I think that's a good way to understand it, is them sort of being like, "You know what? We can fuck with them. We have some power now and we can use it."

0:43:07.8 Peter: Yeah. Now, before you wrap up, I want to mention one thing. I mentioned earlier that there's a second justification that Congress had for the Violence Against Women Act, and that's the Equal Protection Clause. Congress says, hey, the Fourteenth Amendment has a clause that says that everyone must be treated equally under the law, and so we're passing this law to further the equal treatment of women. And the Court rejects this, and what it says is that the Equal Protection Clause prevents states from treating citizens unequally, but that's it. It does not allow the federal government to pass laws to further the cause of equality.

0:43:40.5 Peter: This is itself a very academic discussion that we don't need to get into and we don't have the time to get into, but I just want to point out that it's another area where conservatives have tried to arbitrarily limit progressive legislation, this time by limiting the scope of the Equal Protection Clause and what its implications are. The view being espoused by the conservatives here is very commonly accepted among lawyers, but it's actually very shaky and ahistorical. And again, I don't want to get into too many details, but Kermit Roosevelt, a professor at Penn Law who clerked for Souter, who wrote the dissent in this case, in US v. Morrison, when this case came down, published a compelling article titled Bait and Switch: Why United States v. Morrison is Wrong about Section 5.

0:44:23.3 Peter: The article is worth the read, especially if you're a law student or a lawyer, only if you're a law student or a lawyer, I'll say, I can't subject everyone else to this, because it's a good example of how conservatives have kneecapped the possibility presented by the Equal Protection Clause, which we've harped on on this podcast. The Equal Protection Clause is a part of the Constitution that says that the law must treat everyone equally and if you are on the left, you have to look at that and think that if we want a constitutional basis for a better world, a better country, there it is staring us right in the face, everything that we believe in is laid out right there, and conservatives saw that before anyone.

0:45:04.8 Peter: And for 150 years, they've been working to arbitrarily narrow it to the best of their ability, and if we want, as leftists, as people on the left, who want to use the law as a weapon for equality and for justice, if you want to have a legal argument that you can lay out in defense of what we believe, it has to center around the Equal Protection Clause. And that's why, although I think it's probably too technical and academic of a discussion to get into here, but I couldn't ignore it entirely in this episode, 'cause I think it's important to point out the various ways in which the conservatives have hampered the cause. Worth noting that this is a project that spans the entire Constitution, and every clause that might give Congress power to pass progressive legislation, conservatives will push back against and argue that it's limited for whatever arbitrary reasons they can come up with.

0:46:01.1 Michael: And so I want to hit a point that Souter makes in his dissent. We've talked a lot about the record that Congress amassed here, and the point he makes is that it's actually bigger and more comprehensive than the historical record supporting the Civil Rights Act, which just goes to show how thorough this was. I mentioned earlier that there were 20 states doing gender task force reports as a part of this. It was just such a massive, massive project, and this law was the output of that project, and the Court is looking at that and saying, "No, no, just, no."

0:46:47.9 Michael: And I think it's just worth emphasizing that that's really what this is, this isn't objective, and this isn't the Court being constrained by the view of the Founders or the text of the Constitution. This is their biases and their own attitudes about women dictating the outcome of this case.

0:47:08.7 Peter: This is one of those cases where... What explains it better? What explains the conservative view of the Violence Against Women Act better? What explains the conservative view of the Commerce Clause better? Is it truly that they have some extremely specific view about the intersection of commerce and violence against women, or is it perhaps that they see a bigger picture here? That they can see the ways in which the federal government is able to step in and create progressive legislation and view that as a threat to the conservative political project, and recognize that they have the power to put a stop to it.

0:47:51.0 Peter: The simplest explanation is the correct one here, and it's really frankly the only thing that explains their extremely awkward and completely arbitrary creation of new rules every time a new law pops up that they don't like.

0:48:08.4 Rhiannon: Yes, yes. We've said this once, and we will say it over and over again, but if you think that conservative judges are writing their decisions based on a specific limited legal principle, you're wrong, and let this case be an example of policy preferences and views about what problems are important in society and what harm against what kind of groups of people is important to address, that's what they're actually making this decision on.

0:48:42.4 Michael: That's right.

0:48:42.9 Peter: Absolutely.

[music]

0:48:47.0 Peter: Next week is Atkins v. Virginia, a case about the execution of the mentally disabled. I'm not even sure if I'm ready for this one, guys.

0:49:00.9 Michael: No jokes, there's no...

0:49:01.0 Peter: There's no jokes here.

0:49:02.2 Michael: The sound of a balloon deflating.

[laughter]

0:49:04.6 Rhiannon: Right, yeah.

0:49:05.9 Peter: Oh, that's good. Taking the air out of our liberties like a balloon deflating. Alright, coming at you next week with a new metaphor, baby.

0:49:10.4 Michael: Right, exactly...

[laughter]

0:49:15.2 Peter: This is the earliest I've ever had one ready. Follow us on Twitter @fivefourpod. Go to our website, buy our merch, tell your friends and family.

0:49:24.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our Artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.