MAIN	cases	docket	decisions	orders	briefs	rules	guides	calendar
No. 99-5: United States v. Morrison

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 FourthCircuit, sitting en banc, that Congress lacked the constitutional authorityto enact 42 U.S.C. 13981, the provision of the Violence Against Women Actof 1994 (VAWA) that gives victims of gender-motivated violence a privateright of action against their assailants. Respondents acknowledge (Br. inOpp. 1) that "[t]he scope of Congressional authority to legislate underthe Constitution is an important issue." Respondents do not disputethat the issue of Congress's constitutional authority to enact Section 13981is a recurring one. See U.S. Pet. 18 & nn.8, 9 (citing 16 cases, inaddition to this case, in which the issue has arisen). Nor do respondentsidentify any reason why this is not an appropriate case in which to resolvethat issue definitively.

1. Respondents principally contend that "the fact that the court ofappeals found an Act of Congress unconstitutional is not a sufficient groundto grant the petitions." Br. in Opp. 17 (initial capitalizations omitted).Respondents are mistaken. It is a sufficient ground to grant a petitionfor certiorari that "a United States court of appeals has decided animportant question of federal law that has not been, but should be, settledby this Court." Sup. Ct. R. 10(c). And respondents concede (Br. inOpp. 1) that the questions of federal constitutional law decided by theFourth Circuit in this case are indeed "important." It is notnecessary in such circumstances, as respondents suggest (id. at 19), thatthe court of appeals' decision also implicate a conflict among the circuitsor "so far depart[] from the accepted and usual course of judicialproceedings * * * as to call for an exercise of this Court's supervisorypower" (Sup. Ct. R. 10(a)).
This Court has consistently granted certiorari, without waiting for a conflictamong the circuits, when the United States has sought review of a decisiondeclaring a federal statute unconstitutional. See, e.g., National Endowmentfor 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 Statesv. National Treasury Employees Union, 513 U.S. 454 (1995); United Statesv. 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 decisionto invalidate a congressional enactment, which expresses the majority'swill in a democratic society, involves the most momentous application ofjudicial power. See Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Waltersv. National Ass'n of Radiation Survivors, 473 U.S. 305, 319 (1985). It isappropriate for the Court expeditiously "to review the exercise ofth[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 representativebranch of our Government," Walters, 473 U.S. at 319, is not unnecessarilycountermanded. See Robert L. Stern et al., Supreme Court Practice 185 (7thed. 1993) ("Where the decision below holds a federal statute unconstitutional* * * certiorari is usually granted because of the obvious importance ofthe case.").
Although respondents cite (Br. in Opp. 18-19) four cases in which "thisCourt has denied review when Courts of Appeals have declared statutes unconstitutional,"none of those cases involved circumstances similar to those here. In ValleyBroadcasting 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 respondentsrely, the United States, as petitioner, did not even seek plenary reviewof 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 thecourt of appeals and remand the case for further evidentiary proceedings,"explaining that "this Court need not reach the underlying First Amendmentissues at this time-and indeed would likely find the record * * * inadequatefor that purpose" (97-1047 Pet. at 24). It would have been curiousfor the Court to have instead granted certiorari to review the court ofappeals' decision on the merits.1
In two of the other cases cited by respondents, the United States opposedcertiorari, 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 LeadContamination Control Act of 1988, 42 U.S.C. 300j-24(d), violated the TenthAmendment, the United States opposed certiorari because "the decisionbelow has no further practical consequences for the federal effort to addresslead contamination in schools" (96-174 U.S. Br. in Opp. at 9). TheUnited States explained that the statute at issue had simply required theStates to establish programs, by a specified deadline, to assist schoolsin remedying lead contamination. The deadline had since passed, all Stateshad established the programs, and the statute imposed no further obligationon the States. Ibid. In Wilson v. National Labor Relations Board, 920 F.2d1282 (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 LaborRelations Act, 29 U.S.C. 169 violated the First Amendment to the extentthat it did not excuse employees from joining unions based on personal religiousobjections, the NLRB opposed certiorari because of the "unusual circumstances"of the case (90-1362 NLRB Br. in Opp. at 12). The NLRB explained that thecase was "possibl[y] moot[]" (ibid.) and, even if not, that "petitioner'sclaim of an actual and continuing injury is * * * quite thin and insubstantial"(id. at 14), because "even under the court of appeals' conclusion thatthe provision is unconstitutional, [petitioner] is not entitled to the reliefthat [petitioner] seeks-relief that is, in any event, essentially duplicativeof relief already provided" in a related EEOC proceeding (id. at 15(citation omitted)). The NLRB also noted (id. at 16) that the constitutionalissue had never arisen in any other case.
The final case cited by respondents, Rayburn v. General Conference of Seventh-DayAdventists, 772 F.2d 1164 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986),is not one "declar[ing] [a] statute[] unconstitutional" (Br. inOpp. 18). The Fourth Circuit did not invalidate any portion of Title VIIof the Civil Rights Act. It simply held that the First Amendment bars courtsfrom entertaining certain Title VII claims- specifically, claims that achurch (or other religious body) denied a person a pastoral position onthe basis of race or sex. 772 F.2d at 1167-1172. The United States did notparticipate in the case, as would be expected if the court of appeals' decisionposed any significant threat to the constitutionality of Title VII. See28 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, thisCourt has historically required the presence of other factors militatingin favor of exercising its certiorari jurisdiction before granting a petition."The cases instead suggest that, in those rare instances where the Courtdeclines to review a lower court decision holding an Act of Congress unconstitutional,the Court has done so because "other factors" indicate that theconstitutional question is unsuitable for review. No such factors are presenthere.

2. Respondents also criticize (Br. in Opp. 20-26) petitioners for not respondingto particular aspects of the court of appeals' lengthy opinion, includingan observation that the court confined to a single footnote (id. at 23).Respondents misunderstand the purpose of a petition for certiorari, whichis to provide "[a] direct and concise argument" as to why thecase 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 theopinion below. See Robert L. Stern et al., supra, at 357 ("The attemptto show error below * * * should not be a long, full-dress argument suchas would be proper in the brief on the merits, but a condensed version ofsuch an argument.").
While we believe that our petition adequately identifies the principal errorsin the court of appeals' opinion (see U.S. Pet. 19-30), and that a moreextended discussion of the merits is unnecessary at this time, we do wishto address certain of respondents' assertions.
First, we do not contend, as respondents claim (Br. in Opp. 21), that "ifthe activity being regulated is non-economic, it merely imposes a requirementof Congressional findings," or, in other words, that the mere existenceof such findings is "dispositive." As explained in our petition(at 19-22), Congress may regulate intrastate non-economic activity underthe Commerce Clause if that activity has a substantial effect on interstatecommerce. See United States v. Lopez, 514 U.S. 549, 559 (1995) ("theproper test requires an analysis of whether the regulated activity 'substantiallyaffects' interstate commerce"); accord Wickard v. Filburn, 317 U.S.111, 125 (1942) ("[E]ven if [an] activity be local and though it maynot be regarded as commerce, it may still, whatever its nature, be reachedby 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 havefound the requisite nexus to exist between the regulated activity and interstatecommerce, especially where, as here, the nexus may not be obvious to thosewho have not studied the question. See Lopez, 514 U.S. at 563 (explainingthat congressional findings "enable us to evaluate the legislativejudgment that the activity in question substantially affected interstatecommerce, even though no such substantial effect was visible to the nakedeye"). Here, Congress's explicit findings, supplemented with the extensivelegislative record compiled over four years of investigation, demonstratethat gender-motivated violence has a direct and substantial effect on interstatecommerce. See, e.g., H.R. Conf. Rep. No. 711, 103d Cong., 2d Sess. 385 (1994)(Conf. Rep.) (finding that gender-motivated violence deters persons "fromtraveling interstate, from engaging in employment in interstate business,and from transacting with business, and in places involved, in interstatecommerce").
Second, contrary to respondents' assertions (Br. in Opp. 22-23), the presentcase stands in marked contrast to Lopez, not only because of the explicitcongressional findings and extensive legislative record that underlie VAWA,but also because Section 13981 does not present the same federalism concernsas did the Gun-Free School Zones Act of 1990. The legislative record makesclear 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 discriminationin the States' treatment of violent crimes against women. When Congressresponds to a problem with a substantial effect on interstate commerce thatthe States have failed to address, principles of federalism do not preventCongress from acting and do not require that the problem go unredressed.This is particularly clear when, as in this case, Congress acts to vindicatecivil rights, a paradigmatic federal responsibility. Moreover, as explainedin our petition, Section 13981 is crafted to be particularly respectfulof federalism concerns. Unlike the Gun-Free School Zones Act, Section 13981provides an exclusively civil remedy, does not make criminal conduct thatwas 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 Section13981 in no way impedes state efforts to address the problem of gender-motivatedviolence. See Amici Br. of Arizona, et al. 3 ("[S]ection 13981 doesnot interfere with state and local governmental efforts to address the problemof gender-motivated violence.").
Third, respondents dispute (Br. in Opp. 25) that "Congress passed [Section13981] to remedy Equal Protection violations." In enacting Section13981, however, Congress expressly invoked its authority under Section 5of 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 foundin enacting Section 13981 that "bias and discrimination in the [state]criminal justice system often deprive[] victims of crimes of violence motivatedby gender of equal protection of the laws." Conf. Rep. 385. Congressbased that finding, in part, on the reports of many state task forces ongender bias, which documented how state actors, including police, prosecutors,court personnel, and judges, have treated women's complaints of rape, domesticabuse, and other acts of violence as trivial, exaggerated, untruthful, orsomehow the woman's own fault. See U.S. Pet. 8-11.
Fourth, respondents suggest (Br. in Opp. 25-26) that Section 13981 is notan appropriate remedy for discrimination in state justice systems, becauseSection 13981 provides a cause of action against the perpetrators of gender-motivatedviolence, and not against state actors. But respondents view the remedyprovided by Section 13981 too narrowly. Section 13981, while giving victimsa remedy for the injury inflicted by their assailants, also gives victimsa remedy for the injury inflicted by state actors-i.e., the victims' lossof the opportunity to see justice done against their assailants, as a resultof state actors' failure to treat the victims' complaints seriously. AsCongress explained, Section 13981 "allow[s] survivors an opportunityfor 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 justicesystems in additional ways, such as by providing funds to educate statepolice and prosecutors about domestic violence. See 42 U.S.C. 3796gg. Congresswas entitled to conclude that this multi-pronged approach would most effectivelycorrect the causes and remedy the effects of discrimination in state justicesystems against victims of gender-motivated violence.

3. Respondents further argue (Br. in Opp. 26-30) that no circuit conflictexists concerning the constitutionality of Section 13981. We do not contendotherwise. As discussed above, because the court of appeals declared anAct of Congress unconstitutional, this Court's review is warranted in anyevent.
Finally, while respondents do not dispute that the court of appeals' decisionconflicts with 14 district court decisions upholding Congress's authorityto enact Section 13981 (U.S. Pet. 18 & n.8), respondents argue (Br.in Opp. 26) that such a conflict is insufficient, in itself, to warrantthis Court's review. Again, we do not contend otherwise. The district courtdecisions demonstrate, however, that the constitutionality of Section 13981is a recurring question that this Court will inevitably have to decide.3Respondents offer no persuasive reason why the Court should not do so inthis 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 constitutionalityof 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 justicesystems, as respondents suggest (Br. in Opp. 25), to permit victims to bringSection 13981 claims in either federal or state court. A victim may concludethat she will receive a fair hearing in a particular state court, especiallygiven that the victim, not a state prosecutor, controls the process. Todate, however, almost all Section 13981 claims have been brought in federalcourt.

3 As we noted in our petition (at 18 n.9), one district court, in additionto the district court in this case, has held that Congress lacked the constitutionalauthority 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 noticeof appeal in Bergeron, but the private plaintiff did not. The Fifth Circuithas stayed any further proceedings in Bergeron pending the disposition ofthe petitions for certiorari in this case.