By Larry Kramer
The Washington Post, May 23, 2000
In 1994, after four years of very public debate, including testimony from hundreds of experts in dozens of hearings, Congress enacted the Violence Against Women Act. This month, a bare 5 to 4 majority of the Supreme Court brushed all that aside and struck the law down. Why? Not because Congress cannot regulate intrastate matters that “affect” interstate commerce. On the contrary, the majority agreed that this is permitted by the Constitution, reaffirming a long-standing point of law. But, the court said, whether the effects are “substantial” enough to warrant federal regulation “is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.” And the majority just was not persuaded.
This is an astonishing ruling from a court that professes to care about democratic majorities and respect the political process. The justices did much more in this decision than sweep the act off the books. Under a pretense of interpreting the Constitution, they declared that they have the final say about the expediency of an important, and potentially very large, class of federal laws: not just laws under the Commerce Power, which constitute the bulk of modern federal legislation, but many other laws as well. For the limits of all Congress’s powers turn eventually on judgments about the need for federal action.
This is radical stuff. Previous courts have exercised aggressive judicial review, but never like this. Nothing in the Constitution’s language or history supports letting the Supreme Court strike down laws just because it disagrees with Congress’s assessment of how much they are needed. Except for a brief period in the 1930s when an earlier court tried to stop FDR’s New Deal and was decisively repudiated, the court’s role has always ended once it was clear that legislation was rationally related to the exercise of a constitutional power. As Alexander Hamilton observed back in 1792, rejecting the very same argument as that made by the court today, “the degree in which a measure is necessary can never be a test of the legal right to adopt it.”
The Founding generation understood, in a way our generation seems to have forgotten, that judicial review must be contained or we lose the essence of self-government. They saw that, while courts have a vital role to play in protecting individuals and minorities from laws that trample their rights, Congress’s decisions respecting the need to exercise its legislative power must otherwise be left to voters and elections. They foresaw that questions would arise over the limits of federal authority vis-a-vis the states. But, they said (over and over again), those battles must be waged in the political arena. And so they have been, until now.
What kind of government is it when five justices of the Supreme Court, appointed for life by presidents whose mandates expired long ago, can cavalierly override the decision of a democratically elected legislature not on the ground that it acted irrationally but because they do not like its reasoning? By what right do these judges claim the authority to second-guess what Justice Souter in dissent accurately described as a “mountain of data” based on nothing more than their contrary intuitions?
This is important. We have become way too complacent about letting the Supreme Court run our lives, and the current court has exploited this apathy to extend its authority to unheard of lengths. Everyone in the country should be incensed by this decision: not because the Violence Against Women Act was so wonderful or so necessary, but because deciding that it is not–and make no mistake, that is all the majority did–is none of the Supreme Court’s business. Yet liberals will sit awkwardly by because they liked the judicial activism we got from the Warren court, though that court could not touch this one for activism. And, of course, conservatives will gleefully hold their tongues because they never much liked this law in the first place, and because they adore the court’s new federalism (not to mention the chance to see liberals hoist by their own petard). In the meantime, only democratic government suffers. Ironies this thick would be comical were the stakes not so high.
The majority opinion is animated by a sense that the Framers of our Constitution never imagined the federal government enacting laws such as the violence act. I am sure they are right; the Framers would be astounded at the changes in society that have brought us to this juncture. But nowhere near as flabbergasted as they would be at the presumptuousness of five judges in casting aside the considered judgment of the national legislature for no better reasons than these–or at the complacency of the citizenry in the face of such outrageous conduct.