US v. Morrison
bobsheridan at earthlink.net
Tue Oct 25 17:44:08 PDT 2005
Janet Alexander wrote:
"...Of course the animus toward VAWA doesn't help one provide students
with a principled doctrinal explanation."
I admire principled doctrinal explanations as much as the next person
but it seems to be in the nature of the beast for the Court to make
leaps in one direction or another based on personal or political
preference masquerading as high jurisprudence. If this weren't so, we
wouldn't need to worry whether a nominee for the Court were a
dyed-in-the-wool conservative or liberal or wolf-in-sheep's clothing. I
suppose what we call jurisprudence IS high in the sense that if a
Supreme Court justice indulges in it, votes on it, and lays it down as
law, then we might as well call it high jurisprudence as anything, since
we have to live with it and it is handed DOWN.
I was happy to see Justice T. Marshall realistically call the levels of
review infinitely variable, as they are, as opposed to the magical
make-believe of formalistic three-tiered review. Much about SC case law
is structured in theory but nevertheless quite unpredictable as applied
in the next undecided case. The only thing really predictable is that
if a justice like Rehnquist disliked entertaining certain kinds of
cases, those cases weren't going to make it into or out of the Court in
one piece. VAWA is one example and Boerne was another. Need to make up
some new never-before-heard-of doctrine? Well, congruent and
proportional is at least as creative as emanations and penumbras.
They're both radioactive.
If cleverer people than me are able to find principled doctrinal
explanations, more power to them. I hope they'll forgive me if I see
more than a fair share of ad hoc decision-making going on. The only
interesting thing about it is wondering from which pile of competing
doctrine will the majority and minority wings of the court in any split
decision reach in order to line their nests. Birds of a feather...
Not too cynically yours,
> Rehnquist and the Judicial Conference lobbied Congress against
> VAWA on the ground that it would flood the federal courts with
> insignificant domestic violence cases. When Congress passed it
> anyway, the Court struck it down. Cf. the "domestic relations
> exception" to diversity jurisdiction which (like modern 11th amendment
> jurisprudence) finds no support in the constitutional text. Judith
> Resnik's "Housekeeping," which traced federal jurisdiction's gender
> bias, continues to ring true.
> Of course the animus toward VAWA doesn't help one provide
> students with a principled doctrinal explanation.
> -- Janet Alexander
> At 10:52 AM 10/25/2005 -0400, Jessica Silbey wrote:
>> In teaching section V jurisprudence at the end of a unit on
>> federalism (commerce clause, tenth amendment, etc.) in our
>> constitutional law course, I find myself regularly perplexed by
>> Rehnquist s opinion in US v. Morrison regarding the deficiency of
>> VAWA as regards Congress section V power. Other than the state
>> action problem, which I understand and can explain to my students (I
>> hope) with a sufficient amount of clarity e.g., that VAWA visits no
>> consequence on state actors for their alleged discriminatory behavior
>> in prosecuting gender-motivated crimes and therefore does little, if
>> anything, to prevent the states from further discriminating in
>> violation of the Fourteenth Amendment how else is VAWA incongruent
>> and out of proportion to the wide-spread harm of gender
>> discrimination that Congress documented and 21 states admitted to
>> (and sought help to combat)? Perhaps this is enough. But I wonder,
>> especially, because VAWA appears (and I could be wrong about this) to
>> be in substantial ways duplicative of state laws in making illegal
>> certain forms of gender discrimination and criminal activity. Other
>> than Scalia s tautological comment during oral argument that section
>> V does not provide as a remedy the state s failure to abide by the
>> Constitution the federal government s abolition of the federal system
>> I am struggling to understand the majority s position that VAWA is a
>> usurpation of congressional power to the detriment of state autonomy
>> under section V.
>> Off line replies are welcome. Thanks.
>> Jessica Silbey
>> Assistant Professor of Law
>> Suffolk University Law School
>> 120 Tremont Street
>> Boston, MA 02108
>> 617-305-6270 (office)
>> 617-305-3079 (fax)
>> jsilbey at suffolk.edu <mailto:jsilbey at suffolk.edu>
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