New Conservative Activism Sweeps the Federal Courts

WASHINGTON —  As a 17-year-old freshman at Virginia Tech University, Christy Brzonkala turned first to school disciplinary authorities with her charge that two star football players had raped her.

But they threw out the case against one of the players for lack of evidence, and sentenced the other to a “deferred suspension” that would take effect only when his football career was over.

So Brzonkala went to the federal courts, relying on the brand-new Violence Against Women Act. Not only did she fail to prevail, but the appeals court in Richmond, Va., threw out the law as an unconstitutional intrusion into states’ rights.

That March 5 decision reflects a new conservative activism sweeping the federal courts now that judges appointed by the last two Republican presidents, Reagan and Bush, constitute the majority of federal judges.

Not long ago, Republicans decried activist judges for overstepping their authority and, in effect, making law from the bench. Conservatives complained that an elitist, unelected judiciary had assumed too much power: ordering nationwide school desegregation in the 1950s, throwing out state-sponsored prayers in public schools in the 1960s and striking down all the laws that made abortion a crime in the 1970s.

Now the roles are reversed. In recent years, the Supreme Court has thrown out federal laws intended to regulate handgun purchases and possession of guns in schools. In the last year alone, conservative judges have knocked down Clinton administration regulations on youth smoking and clean air.

This week, as the Supreme Court’s current term wraps up, the justices will decide whether to extend the principle of “state sovereign immunity” to shield states from federal suits charging patent and copyright infringement.

Most legal scholars agree that the recent federal court rulings signal a fundamental shift in the balance of power between Washington and the states.

When Reagan and Bush were elected in 1980, they pledged to appoint cautious judges who would enforce the laws as written. Judges must “not legislate from the bench,” Bush said.

Over their 12 years in office, Reagan and Bush appointed a majority of the 843 currently serving federal judges, including five of the nine Supreme Court justices. With little fanfare or public notice, conservative judges--most of them appointed by Reagan or Bush--have struck down an array of liberal laws and regulations during the last two years, not only on gun control and smoking but on drivers’ privacy, religious liberty, age discrimination and women’s rights.

Yale law professor Akhil Amar said the Supreme Court had “put the pincers on federal power. The tone of these opinions is rather dismissive of Congress and the president.” He noted that while the Supreme Court under Chief Justice Earl Warren in the 1960s was known for its activism, “rarely did that court strike down an act of Congress.”

But University of Utah professor Michael McConnell, a former Reagan administration lawyer, praised the recent rulings as faithful to the Constitution.

“I see this as a revitalization of the principle that the federal government’s power is limited,” McConnell said. “As for the Violence Against Women Act, it is a popular bit of symbolic legislation, but it’s hard to defend under the court’s current precedents.”

The Violence Against Women Act gives victims of sexual assault the right to sue their attackers in federal court.

The Brzonkala case is not the only recent case in which the Richmond appeals court has exercised what Judge J. Michael Luttig, a Bush appointee, has described as its “affirmative constitutional obligation to safeguard the sovereignty of the states against congressional encroachment.”

Last August, the same court struck down the Clinton administration’s campaign against youth smoking, ruling that federal regulators had no authority over tobacco.

In September, the Richmond-based court struck down the 1994 Drivers’ Privacy Protection Act, which bars states from selling personal data from drivers’ records, such as names, phone numbers and street addresses. Congress had responded to the 1989 murder of Los Angeles actress Rebecca Schaeffer, who was killed by a stalker who had obtained her home address from the state Department of Motor Vehicles.

The Supreme Court will hear the Clinton administration’s appeals in both the tobacco and the drivers’ privacy cases in the fall. But the biggest constitutional showdown is likely to occur over the Violence Against Women Act.

By the end of the month, the Clinton administration and the Legal Defense Fund for the National Organization for Women will appeal Brzonkala’s case to the Supreme Court, seeking to have the law revived. The case, which will probably be heard in the new term beginning in October, sets the stage for a major battle over whether Congress has the power to enact national hate-crimes laws.

On nearly unanimous votes in both the House and the Senate, Congress enacted the law in the summer of 1994 on the heels of a series of stories about women who had been battered by husbands or boyfriends, college students who had been raped by their dates, and working women who feared leaving their jobs at night.

Sexual assaults often go unpunished, lawmakers found, particularly when the victim knows her attacker. And rarely, if ever, can victims obtain compensation for the damages they suffer.

All Americans have “a right to be free from crimes of violence motivated by gender,” Congress declared in passing the act.

Just four weeks later, Brzonkala was allegedly raped by two football players in a dormitory room. She says she then cut off her hair, became depressed and suicidal and hid in her room. She did not report the incident to the police. Only after six months did she tell a counselor what had happened.

Rape and sexual assault are the only violent felonies the university does not automatically report to the police. Instead, a hearing was held before a university officer in May 1995. Tony Morrison, the starting linebacker for Virginia Tech, was found guilty and suspended.

But his family hired a lawyer who pointed out that the campus policy on sexual assaults was not part of the student handbook in September 1994, and the university agreed to hold a new hearing during the summer. When Brzonkala returned home from a family vacation in August, she was stunned to learn that Morrison’s suspension had been overturned. He would be back to play football in the fall.

“They didn’t call me or send me a note. Nothing,” she said. “And they said he was just guilty of verbal abuse.” She did not return to school.

After her story exploded in the college newspaper, the state opened an investigation but decided not to charge Morrison.

“Whatever occurred between these two folks was consensual,” said David Paxton, a Roanoke, Va., lawyer who represented Morrison. He too left the university and played out his football career at a small college in eastern Virginia, Paxton said.

With no other remedy available, Brzonkala filed a civil suit in the federal courts, only to see the U.S. 4th Circuit Court of Appeals throw out the entire law. Judge Luttig began his opinion: “We the people, distrustful of power, and believing that government limited and dispersed protects freedom best . . . “

Brzonkala’s reaction to the appeals court ruling: “I felt like I had been raped again.”

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EXPLICIT PROGRAMMING: Court will hear dispute over who should keep children from overtly sexual shows. A11