Rape Ruling Not Anti-Women

The Supreme Court's decision striking down a key provision of the 1994 Violence against Women Act is almost as important for what it does not do as it is for what it does.

Although the narrowest majority of justices (5-4) ruled Monday that women cannot sue their attackers for civil damages under federal law, the decision does not preclude women from pursuing any state remedies available to them.

All states already have plenty of legal theories (which vary from state to state) upon which a woman may base her claims against anyone who has harmed her.

It's hard to argue otherwise when the two women on the Court, justices Sandra Day O'Connor and Ruth Bader Ginsburg, found themselves on opposite sides of the decision, with O'Connor representing the swing vote which gave the majority its majority.

The law in question gave women a right to sue in federal court if their crimes were "motivated by gender," whether or not criminal charges were brought by state and local officials for the same incident. Congress stated at the time that the federal law was necessary because there was "existing bias and discrimination in the criminal justice system" which often deprived women of their equal protection rights under the Constitution.

The justices didn't disagree that the issue is an important one or that Congress's concerns weren't valid. The court ruled, however, that it was too much of a legal stretch to try to solve the problem under federal, as opposed to state law. The majority noted that permitting this law to stand because of its argued "federal interest" would "allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption."

Now, allowing Congress o regulate such crime may make sense to you and me (or maybe not) but it apparently doesn't jibe with the ideology of a majority of Justices on this court. Time and again, this court, with its slim conservative majority, has ruled against increasing the scope federal jurisdiction into areas traditionally covered by state laws -- whether the issue was federal Gun-Free School Zones in 1995 (struck down as unconstitutional by the Court) or the Violence Against Women Act in 2000.

In other words, the folks arguing in support of the federal law, and the politicians who drafted the law, apparently weren't able to tie in the remedies contained in the law to enough tangible federal interests to convince these justices that they ought to put aside their natural skepticism about and resistance toward increasing federal jurisdiction. You can almost hear the justices saying: "Nothing personal, folks. But we just don't want more federal laws. We want more reliance on state laws."

Which is why it is unlikely that Congress will be willing or able to go back to the drawing board, change a few words here or there, and come up with a federal law which could make it past the court in these circumstances.

A good lawyer or good politician can sometime tweak words to save a statute and make it constitutional. But no lawyer or politician can generate a "federal interest" which will change the justices' minds. Only two things can do that: the passage of time and more empirical evidence that this, indeed, is an enormous federal problem which the Supreme Court cannot ignore, or a change in the makeup of the Supreme Court itself.

That's why this decision, with its slim margin and its clearly-drawn ideological lines, may generate political pressure in one direction or another as the presidential campaign gears up. A Republican White House in 2001 would virtually guarantee a conservative majority on the high court for the foreseeable future. But a Democratic White House could result in a shift in balance on the court and that could mean that cases like this would turn out very differently indeed.