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John Whitehead's Commentary

The Supreme Court Strikes Down the Violence Against Women Act

John Whitehead
Recently, the Supreme Court of the United States decided to continue its crusade to place what it perceives to be constitutional limitations on the powers of the federal government. The Court chose to focus on the Violence Against Women Act or, more specifically, a section of that act giving women victims the right to file private lawsuits against their attackers. In a 5-4 vote, the majority struck down the 1994 law, ruling that Congress didn't have the power to pass it.

For constitutional scholars, the decision hearkened back to the turn of the last century, when the nine justices of the Supreme Court decided to impose their limited vision for the role of the legislature on the rest of the country. Relying on a hard-line theory of laissez faire economics, the Court refused to let states regulate the working conditions of its citizens.

Led by a core group of justices who refused to acknowledge the realities of governing a modern nation, that era lasted for the better part of the first half of the twentieth century. And the decision that launched the court down that narrow path is generally considered one of the more disastrous in the history of the High Court.

The recent decision striking down the Violence Against Women Act may very well join its earlier counterpart in the "bloopers" section of Supreme Court history. But the decision itself is also reflective of a broader crisis of leadership on the High Court of the 21st Century.

Our present justices appear to be incapable of filling the giant shoes left by many of their predecessors. For years, the Supreme Court was an institution that inspired awe, in large part because of the larger-than-life figures who sat at its bench. Those legal giants realized that incremental parsing of the law was not always the route to justice.

They were the justices who gave us historic decisions like Brown, which led to the complete desegregation of society, and Tinker, which established the free speech right of public school students to express their political beliefs. They were the justices who upheld the Civil Rights Act of 1964, groundbreaking legislation that protects racial minorities, citizens of faith and everyone else from gender bias and sexual harassment.

Today's Supreme Court appears incapable of understanding the high principles of justice that inspired these decisions. Their opinions read like labored tours of precedents past, rather than tributes to the equitable principles of liberty and equality that have informed America's constitutional history since the first ratification conventions. And their analysis suggests that they might reject the rulings in each of the three cases above.

Granted, following the constitutional rules laid down by their predecessors is an important component of the Supreme Court's duty. Yet this Court must remember that principles of equity should inform their decisions as well - the fundamental principles that the disadvantaged in society must be allowed to protect themselves from those in positions of power.

Sadly, the current Court is stuck in a kind of legal Dark Ages, bound by its own dim vision of the power of the Constitution. Even as it continues to hear fewer and fewer cases - the numbers are down by almost 50 percent since the early '90s - it continues to retreat from its historic defense of society's most vulnerable.

This month, women were the victims of the Court's shortsightedness. Next term, it may be the disabled, as the Court decides whether states can be sued under the Americans With Disabilities Act. The elderly have already lost their battle to hold states accountable for age discrimination.

Not all the Court's decisions flow from the same legal rules. They all, however, reflect the same legal flaw - namely, taking a narrow view of the Supreme Court's proud history of defending those who need it most. At one time, the High Court boasted giants of the law. Today, that same Court is shrinking before our eyes.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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