No. 99-5
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 99-5
UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
The United States seeks this Court's review of a decision of the Fourth
Circuit, sitting en banc, that Congress lacked the constitutional authority
to enact 42 U.S.C. 13981, the provision of the Violence Against Women Act
of 1994 (VAWA) that gives victims of gender-motivated violence a private
right of action against their assailants. Respondents acknowledge (Br. in
Opp. 1) that "[t]he scope of Congressional authority to legislate under
the Constitution is an important issue." Respondents do not dispute
that the issue of Congress's constitutional authority to enact Section 13981
is a recurring one. See U.S. Pet. 18 & nn.8, 9 (citing 16 cases, in
addition to this case, in which the issue has arisen). Nor do respondents
identify any reason why this is not an appropriate case in which to resolve
that issue definitively.
1. Respondents principally contend that "the fact that the court of
appeals found an Act of Congress unconstitutional is not a sufficient ground
to grant the petitions." Br. in Opp. 17 (initial capitalizations omitted).
Respondents are mistaken. It is a sufficient ground to grant a petition
for certiorari that "a United States court of appeals has decided an
important question of federal law that has not been, but should be, settled
by this Court." Sup. Ct. R. 10(c). And respondents concede (Br. in
Opp. 1) that the questions of federal constitutional law decided by the
Fourth Circuit in this case are indeed "important." It is not
necessary in such circumstances, as respondents suggest (id. at 19), that
the court of appeals' decision also implicate a conflict among the circuits
or "so far depart[] from the accepted and usual course of judicial
proceedings * * * as to call for an exercise of this Court's supervisory
power" (Sup. Ct. R. 10(a)).
This Court has consistently granted certiorari, without waiting for a conflict
among the circuits, when the United States has sought review of a decision
declaring a federal statute unconstitutional. See, e.g., National Endowment
for the Arts v. Finley, 524 U.S. 569 (1998); Babbitt v. Youpee, 519 U.S.
234 (1997); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); United States
v. National Treasury Employees Union, 513 U.S. 454 (1995); United States
v. Edge Broad. Co., 509 U.S. 418 (1993); FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993); Reno v. Flores, 507 U.S. 292 (1993) (federal regulation).
The Court grants review in such cases for good reason. A lower court's decision
to invalidate a congressional enactment, which expresses the majority's
will in a democratic society, involves the most momentous application of
judicial power. See Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Walters
v. National Ass'n of Radiation Survivors, 473 U.S. 305, 319 (1985). It is
appropriate for the Court expeditiously "to review the exercise of
th[at] grave power," United States v. Gainey, 380 U.S. 63, 65 (1965),
so as to assure that the "considered decision of a coequal and representative
branch of our Government," Walters, 473 U.S. at 319, is not unnecessarily
countermanded. See Robert L. Stern et al., Supreme Court Practice 185 (7th
ed. 1993) ("Where the decision below holds a federal statute unconstitutional
* * * certiorari is usually granted because of the obvious importance of
the case.").
Although respondents cite (Br. in Opp. 18-19) four cases in which "this
Court has denied review when Courts of Appeals have declared statutes unconstitutional,"
none of those cases involved circumstances similar to those here. In Valley
Broadcasting Co. v. United States, 107 F.3d 1328 (9th Cir. 1997), cert.
denied, 118 S. Ct. 1050 (1998) (No. 97-1047), the first case on which respondents
rely, the United States, as petitioner, did not even seek plenary review
of the Ninth Circuit's decision holding 18 U.S.C. 1304 to be unconstitutional.
The petition asked only that the Court "vacate the judgment of the
court of appeals and remand the case for further evidentiary proceedings,"
explaining that "this Court need not reach the underlying First Amendment
issues at this time-and indeed would likely find the record * * * inadequate
for that purpose" (97-1047 Pet. at 24). It would have been curious
for the Court to have instead granted certiorari to review the court of
appeals' decision on the merits.1
In two of the other cases cited by respondents, the United States opposed
certiorari, noting that the court of appeals' decisions had little, if any,
practical effect and involved questions that were unlikely to arise again.
In ACORN v. Edwards, 81 F.3d 1387 (5th Cir. 1996), cert. denied, 521 U.S.
1129 (1997) (No. 96-174), although the Fifth Circuit had held that the Lead
Contamination Control Act of 1988, 42 U.S.C. 300j-24(d), violated the Tenth
Amendment, the United States opposed certiorari because "the decision
below has no further practical consequences for the federal effort to address
lead contamination in schools" (96-174 U.S. Br. in Opp. at 9). The
United States explained that the statute at issue had simply required the
States to establish programs, by a specified deadline, to assist schools
in remedying lead contamination. The deadline had since passed, all States
had established the programs, and the statute imposed no further obligation
on the States. Ibid. In Wilson v. National Labor Relations Board, 920 F.2d
1282 (6th Cir. 1990), cert. denied, 505 U.S. 1218 (1992) (No. 90-1362),
although the Sixth Circuit had held that Section 19 of the National Labor
Relations Act, 29 U.S.C. 169 violated the First Amendment to the extent
that it did not excuse employees from joining unions based on personal religious
objections, the NLRB opposed certiorari because of the "unusual circumstances"
of the case (90-1362 NLRB Br. in Opp. at 12). The NLRB explained that the
case was "possibl[y] moot[]" (ibid.) and, even if not, that "petitioner's
claim of an actual and continuing injury is * * * quite thin and insubstantial"
(id. at 14), because "even under the court of appeals' conclusion that
the provision is unconstitutional, [petitioner] is not entitled to the relief
that [petitioner] seeks-relief that is, in any event, essentially duplicative
of relief already provided" in a related EEOC proceeding (id. at 15
(citation omitted)). The NLRB also noted (id. at 16) that the constitutional
issue had never arisen in any other case.
The final case cited by respondents, Rayburn v. General Conference of Seventh-Day
Adventists, 772 F.2d 1164 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986),
is not one "declar[ing] [a] statute[] unconstitutional" (Br. in
Opp. 18). The Fourth Circuit did not invalidate any portion of Title VII
of the Civil Rights Act. It simply held that the First Amendment bars courts
from entertaining certain Title VII claims- specifically, claims that a
church (or other religious body) denied a person a pastoral position on
the basis of race or sex. 772 F.2d at 1167-1172. The United States did not
participate in the case, as would be expected if the court of appeals' decision
posed any significant threat to the constitutionality of Title VII. See
28 U.S.C. 2403.
Those cases thus offer no support for respondents' assertion (Br. in Opp.
19) that "[w]hen a federal statute is declared unconstitutional, this
Court has historically required the presence of other factors militating
in favor of exercising its certiorari jurisdiction before granting a petition."
The cases instead suggest that, in those rare instances where the Court
declines to review a lower court decision holding an Act of Congress unconstitutional,
the Court has done so because "other factors" indicate that the
constitutional question is unsuitable for review. No such factors are present
here.
2. Respondents also criticize (Br. in Opp. 20-26) petitioners for not responding
to particular aspects of the court of appeals' lengthy opinion, including
an observation that the court confined to a single footnote (id. at 23).
Respondents misunderstand the purpose of a petition for certiorari, which
is to provide "[a] direct and concise argument" as to why the
case warrants this Court's review. Sup. Ct. R. 14.1(h); see also Sup. Ct.
R. 14.3 ("A petition for a writ of certiorari should be stated briefly.").
It is not to engage in a point-by-point refutation of the reasoning of the
opinion below. See Robert L. Stern et al., supra, at 357 ("The attempt
to show error below * * * should not be a long, full-dress argument such
as would be proper in the brief on the merits, but a condensed version of
such an argument.").
While we believe that our petition adequately identifies the principal errors
in the court of appeals' opinion (see U.S. Pet. 19-30), and that a more
extended discussion of the merits is unnecessary at this time, we do wish
to address certain of respondents' assertions.
First, we do not contend, as respondents claim (Br. in Opp. 21), that "if
the activity being regulated is non-economic, it merely imposes a requirement
of Congressional findings," or, in other words, that the mere existence
of such findings is "dispositive." As explained in our petition
(at 19-22), Congress may regulate intrastate non-economic activity under
the Commerce Clause if that activity has a substantial effect on interstate
commerce. See United States v. Lopez, 514 U.S. 549, 559 (1995) ("the
proper test requires an analysis of whether the regulated activity 'substantially
affects' interstate commerce"); accord Wickard v. Filburn, 317 U.S.
111, 125 (1942) ("[E]ven if [an] activity be local and though it may
not be regarded as commerce, it may still, whatever its nature, be reached
by Congress if it exerts a substantial economic effect on interstate commerce.")
(quoted in Lopez, 514 U.S. at 556). Congressional findings may, however,
assist the courts in determining whether Congress could rationally have
found the requisite nexus to exist between the regulated activity and interstate
commerce, especially where, as here, the nexus may not be obvious to those
who have not studied the question. See Lopez, 514 U.S. at 563 (explaining
that congressional findings "enable us to evaluate the legislative
judgment that the activity in question substantially affected interstate
commerce, even though no such substantial effect was visible to the naked
eye"). Here, Congress's explicit findings, supplemented with the extensive
legislative record compiled over four years of investigation, demonstrate
that gender-motivated violence has a direct and substantial effect on interstate
commerce. See, e.g., H.R. Conf. Rep. No. 711, 103d Cong., 2d Sess. 385 (1994)
(Conf. Rep.) (finding that gender-motivated violence deters persons "from
traveling interstate, from engaging in employment in interstate business,
and from transacting with business, and in places involved, in interstate
commerce").
Second, contrary to respondents' assertions (Br. in Opp. 22-23), the present
case stands in marked contrast to Lopez, not only because of the explicit
congressional findings and extensive legislative record that underlie VAWA,
but also because Section 13981 does not present the same federalism concerns
as did the Gun-Free School Zones Act of 1990. The legislative record makes
clear that Congress acted because the States demonstrably, and admittedly,
had failed adequately to address the problem of gender-motivated violence.
Indeed, the legislative record establishes a history of systemic discrimination
in the States' treatment of violent crimes against women. When Congress
responds to a problem with a substantial effect on interstate commerce that
the States have failed to address, principles of federalism do not prevent
Congress from acting and do not require that the problem go unredressed.
This is particularly clear when, as in this case, Congress acts to vindicate
civil rights, a paradigmatic federal responsibility. Moreover, as explained
in our petition, Section 13981 is crafted to be particularly respectful
of federalism concerns. Unlike the Gun-Free School Zones Act, Section 13981
provides an exclusively civil remedy, does not make criminal conduct that
was not criminal under state law, and does not otherwise "effect[]
a change in the sensitive relation between federal and state criminal jurisdiction."
Lopez, 514 U.S. at 561 n.3 (internal quotation marks omitted). And Section
13981 in no way impedes state efforts to address the problem of gender-motivated
violence. See Amici Br. of Arizona, et al. 3 ("[S]ection 13981 does
not interfere with state and local governmental efforts to address the problem
of gender-motivated violence.").
Third, respondents dispute (Br. in Opp. 25) that "Congress passed [Section
13981] to remedy Equal Protection violations." In enacting Section
13981, however, Congress expressly invoked its authority under Section 5
of the Fourteenth Amendment as well as under the Commerce Clause. 42 U.S.C.
13981(a). As our petition notes (at 8), moreover, Congress expressly found
in enacting Section 13981 that "bias and discrimination in the [state]
criminal justice system often deprive[] victims of crimes of violence motivated
by gender of equal protection of the laws." Conf. Rep. 385. Congress
based that finding, in part, on the reports of many state task forces on
gender bias, which documented how state actors, including police, prosecutors,
court personnel, and judges, have treated women's complaints of rape, domestic
abuse, and other acts of violence as trivial, exaggerated, untruthful, or
somehow the woman's own fault. See U.S. Pet. 8-11.
Fourth, respondents suggest (Br. in Opp. 25-26) that Section 13981 is not
an appropriate remedy for discrimination in state justice systems, because
Section 13981 provides a cause of action against the perpetrators of gender-motivated
violence, and not against state actors. But respondents view the remedy
provided by Section 13981 too narrowly. Section 13981, while giving victims
a remedy for the injury inflicted by their assailants, also gives victims
a remedy for the injury inflicted by state actors-i.e., the victims' loss
of the opportunity to see justice done against their assailants, as a result
of state actors' failure to treat the victims' complaints seriously. As
Congress explained, Section 13981 "allow[s] survivors an opportunity
for legal vindication that the survivor, not the State, controls."
S. Rep. No. 545, 101st Cong., 2d Sess. 42 (1990) (emphasis added).2 Meanwhile,
Congress also sought in VAWA to remedy the discrimination in state justice
systems in additional ways, such as by providing funds to educate state
police and prosecutors about domestic violence. See 42 U.S.C. 3796gg. Congress
was entitled to conclude that this multi-pronged approach would most effectively
correct the causes and remedy the effects of discrimination in state justice
systems against victims of gender-motivated violence.
3. Respondents further argue (Br. in Opp. 26-30) that no circuit conflict
exists concerning the constitutionality of Section 13981. We do not contend
otherwise. As discussed above, because the court of appeals declared an
Act of Congress unconstitutional, this Court's review is warranted in any
event.
Finally, while respondents do not dispute that the court of appeals' decision
conflicts with 14 district court decisions upholding Congress's authority
to enact Section 13981 (U.S. Pet. 18 & n.8), respondents argue (Br.
in Opp. 26) that such a conflict is insufficient, in itself, to warrant
this Court's review. Again, we do not contend otherwise. The district court
decisions demonstrate, however, that the constitutionality of Section 13981
is a recurring question that this Court will inevitably have to decide.3
Respondents offer no persuasive reason why the Court should not do so in
this case.
* * * * *
For the reasons stated above and in the petition for a writ of certiorari,
the petition should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
SEPTEMBER 1999
1 It was only one year later that the Court decided the constitutionality
of 18 U.S.C. 1304 in Greater New Orleans Broadcasting Co. v. United States,
119 S. Ct. 1923 (1999).
2 It is not inconsistent with Congress's recognition of bias in state justice
systems, as respondents suggest (Br. in Opp. 25), to permit victims to bring
Section 13981 claims in either federal or state court. A victim may conclude
that she will receive a fair hearing in a particular state court, especially
given that the victim, not a state prosecutor, controls the process. To
date, however, almost all Section 13981 claims have been brought in federal
court.
3 As we noted in our petition (at 18 n.9), one district court, in addition
to the district court in this case, has held that Congress lacked the constitutional
authority to enact Section 13981. See Bergeron v. Bergeron, No. 96-3445-A,
1999 WL 355954 (M.D. La. May 28, 1999). The United States filed a notice
of appeal in Bergeron, but the private plaintiff did not. The Fifth Circuit
has stayed any further proceedings in Bergeron pending the disposition of
the petitions for certiorari in this case.