Constitutional Law
Jun. 7, 2001
Divide and Conquer
Chicken Little decided, on the basis of an acorn propelled by gravity, that the sky was falling. He found a host of credulous fellows but turned out to be in error. Cassandra prophesied disaster and was believed by no one. She was, however, accurate. Recent decisions of the U.S. Supreme Court are ominous portents for the constitutional bases of today's civil rights laws. But it remains to be seen whether Chicken Little or Cassandra is the appropriate paradigm.
Charles S. Doskow
Dean Emeritus and Professor of Law, University of La Verne College of Law
Email: dosklaw@aol.com
Harvard Law School
Charles is a past president of the Inland Empire Chapter of the Federal Bar Association, and in 2012 was awarded the chapter's Erwin Chemerinsky Defender of the Constitution award.
Chicken Little decided, on the basis of an acorn propelled by gravity, that the sky was falling. He found a host of credulous fellows but turned out to be in error. Cassandra prophesied disaster and was believed by no one. She was, however, accurate. Recent decisions of the U.S. Supreme Court are ominous portents for the constitutional bases of today's civil rights laws. But it remains to be seen whether Chicken Little or Cassandra is the appropriate paradigm.
A solid majority of five justices, William H. Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy ("the majority"), has rendered a series of decisions that have curtailed national power and civil rights. The two themes - narrowing the Commerce Clause and limiting the scope of congressional power under the 14th Amendment - are slowly but surely converging. The question remains: How much further will the majority go?
The first case to narrow the Commerce Clause, United States v. Lopez, 514 U.S. 549 (1995), involved the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun in a schoolyard. The majority could find no interstate hook on which to hang congressional power to enact such a law and declared it unconstitutional. The case was the first since New Deal days to find that an act of Congress violated the Commerce Clause.
The dissent emphasized the bases on which Commerce Clause jurisdiction had been sustained in similar cases since the 1930s, but clearly the majority was intent on implementing a narrower view.
Then United States v. Morrison, 529 U.S. 598 (2000), likewise refused to grant Commerce Clause power to Congress. The case involved the creation of a federal private right of action under the Violence Against Women Act. The majority held that Congress had exceeded its power in the creation of the private right.
These two decisions represent a significant shrinking of Congress' Commerce Clause power. In both cases, the court spoke of areas traditionally subject to state power. Congress, by attempting federal regulation, had infringed on powers reserved to the states by the 10th Amendment.
Moreover, the opinions in both cases recited that neither involved "economic" or "commercial" issues. The court has traditionally been more willing to validate regulation in business-type cases; the question arises whether the court will hold civil rights cases involving restaurants, hotels and other places of public accommodation to be on the economic side of the street.
At the same time, a parallel trend has emerged in cases decided by the majority limiting the power of Congress to enforce a variety of rights and restricting Congress' power to enforce federal rights against the states or in state courts. Beginning with Seminole Tribe v. Florida, 517 U.S. 44 (1966), invalidating a provision requiring the states to negotiate gambling matters with Native American tribes, the court has on several occasions deprived Congress of its power to impose its will on the states.
One aspect of this deprivation has been the area of state immunity from suit. The 11th Amendment bars suits against the states in federal courts, but the rule has been subject to an exception for enforcement of federal rights. See, e.g., Testa v. Katt, 330 U.S. 386 (1947).
But states have the power to invoke sovereign immunity in state courts. Unless a source of federal power exists to require the states to hear cases based on federal law brought directly against them, the state becomes totally immune for violations of federal rights of individuals. The cases of Alden v. Maine, 527 U.S. 706 (1999), Florida Prepaid Postsecondary Education Board v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), all deprived plaintiffs of causes of action on the basis of federalism principles. While these three cases are not civil rights cases, they do represent cases in which plaintiffs were left without a remedy against state governments.
The majority held congressional authorization of suit against states by state employees to be unconstitutional under both the Age Discrimination in Employment Act and the Americans With Disabilities Act unconstitutional. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). These laws, although they expressly authorized such suits, were held to prohibit more state conduct than could be found to be a violation of the 14th Amendment, the sole source of congressional power to authorize suit against the state. Each grant of power was found not to constitute "appropriate legislation" under Paragraph 5 ("Congress shall have the power to enforce this amendment by appropriate legislation.").
And note that the Morrison court declined to allow the 14th Amendment to justify creation of a private right of action under the Violence Against Women Act, finding that the problem of gender-based discrimination does not exist in all states, or even most states, despite a lengthy record before Congress and amicus support by many states.
These cases ignored earlier precedent that had sustained the power of Congress to prohibit conduct not declared by the court to have violated the 14th Amendment. See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966). The opinions emphasize that no adequate record of violations of constitutional rights existed to sustain congressional intervention in the specific area. They clearly demonstrate a new insistence on an extraordinarily strong justification for the exercise of Congress' civil rights enforcement power.
Every recent case cited above was decided by the majority, over vigorous dissents by the other four justices. This is a consistent pattern. In the 1999 term, 18 cases were decided 5-4. Ten of these decisions were by this same majority; no other group of five justices joined for more than one decision. The 1998 term had 16 cases decided 5-4, seven by the majority; the 1997 term had 15 cases decided 5-4, six by the majority; the 1996 term, eight of 18; the 1995 term, five of 11.
The fact that a decision is 5-4 is not talismanic; it means only that the majority has ruled with no outside support. But it does identify an issue that has created a fundamental division among the justices, and its repetition shows semipermanent alignments. The fact that many other cases are decided on other alignments does not change the conclusion: These cases have a specific focus and have provided a consistent result.
It will not come as a surprise that the same majority cast the votes that cut off the Florida recount and made George W. Bush president. That might be of less interest had it not been reported in the press that, from the very first day that the election controversy was discussed by the court, it divided 5-4 (same five, same four) on whether to hear the case. The final vote, to stop the recount, reflected the same division.
The election of Bush virtually assures that on retirement of the chief justice and/or O'Connor, the replacement(s) will join the majority.
Professor Erwin Chemerinsky has demonstrated ("The O'Connor Court," California Lawyer, March 2001, at 21) that, in the present makeup of the court, O'Connor is the swing vote. But in the cases cited, there are no swing votes, simply a solid bloc evidently determined to accomplish a narrowing of federal power and concomitant enhancement of state power - simply put, a conservative agenda.
The Voting Rights Act of 1965 was upheld on the basis that Congress could invoke the 14th Amendment to prohibit conduct that had not been found by the court to violate that amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966). The equal-protection aspect of the Morrison result directly affects that holding. The court held that the record on which the Violence Against Women Act was based was insufficient to support invocation of the first clause of the 14th Amendment, repeating its limited view of Congress' power under that provision.
The constitutional need for the Voting Rights Act was supported adequately by the record when the act passed constitutional muster in 1966; the record might be held not to support congressional action today. In Morrison, the majority cited favorably the Civil Rights Cases, 109 U.S. 3 (1883), in which the post-Reconstruction court holding that the 14th Amendment did not apply to private action, which for 80 years impeded enforcement of civil rights in this country.
The civil rights legislation of 1964, guaranteeing equal access to public accommodations, was upheld on the ground that the businesses in question affected interstate commerce. Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), held that a motel in Atlanta with interstate guests affected commerce. Ollie's Barbecue in Birmingham, Ala., was held to affect commerce by its interstate purchases, in Katzenbach v. McClung, 379 U.S. 294 (1964).
Both cases invoked such earlier authority as Wickard v. Filburn, 317 U.S. 111 (1942), the classic maximum extension of the Commerce Clause to homegrown and consumed wheat on a theory of cumulative effect.
If the ultimate result of the recent line of Supreme Court cases results in leaving civil rights enforcement to the states, it is a dangerous one. And without confidence that the Voting Rights Act is intact, it is downright scary.
The three 1960s cases cited above appear to be squarely in the cross hairs of the majority. As the Commerce Clause narrows, and legislation under the 14th Amendment is held to a higher and higher level of scrutiny together with the consequent insulation of the states from liability, the signs that Cassandra would read are increasingly evident.
Charles S. Doskow is dean emeritus and professor of law at the University of La Verne College of Law.
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