As discussed above, McConnell has vigorously supported the Court’s decision striking down the Violence Against Women Act in Morrison and has criticized the congressional enactment of the law. But McConnell’s praise for judicial limits on Congress’ power to protect civil rights under the rubric of “federalism” goes well beyond Morrison itself. In 1998, McConnell wrote that the Court’s “recent federalism decisions”, although “controversial politically,” are jurisprudentially “unexceptional,” because they serve “constitutional principles that can be traced to the constitutional text and history.”13 This was despite significant criticism from both legal scholars and the dissenting justices in these 5-4 decisions that the majority’s mandates, particularly with respect to the so-called sovereign immunity of state agencies, cannot properly be justified by the text and history of the Constitution.
In fact, McConnell has appeared to be critical of the dissenters for vigorously raising these concerns. He recently wrote that the 1999-2000 Term of the Supreme Court was “cause for celebration” because “[f]ederalism was strengthened.”14 The Court’s 5-4 federalism decisions that term included not only Morrison, but also the holding in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), that victims of age discrimination could not sue state agencies for damages under federal law. McConnell expressed concern about Justice Stevens’ statement in dissent in Kimel that the Court’s federalism and sovereign immunity rulings are “so profoundly mistaken and so fundamentally inconsistent with the Framers’ conception of our constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court.”15 One conclusion drawn by McConnell on this subject is clearly correct: “[w]hoever appoints the next few Justices will determine the meaning of the Constitution in dozens of important areas.”16 A similar conclusion applies to appellate court nominations like McConnell’s.
Interestingly, McConnell has criticized one of the Court’s recent federalism decisions. He has vigorously argued that the Court was wrong in striking down the Religious Freedom Restoration Act (“RFRA”) in City of Boerne v. Flores, 521 U.S. 507 (1997). That federal law was an effort to counteract the Court’s 1990 decision in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)(discussed further below) and provide more protection against government practices that substantially burden the free exercise of religion. The statute was based on Congress’ power under Section Five of the Fourteenth Amendment to enforce the provisions of that Amendment, including the protection of religious liberty incorporated from the First Amendment. McConnell maintained that in Boerne, the Court improperly failed to defer to Congress’ findings and conclusions on the scope of the problem and the appropriateness of the remedy, and that Congress should have been able to rely on its authority to interpret and enforce the Fourteenth Amendment in enacting RFRA.17
In our view, McConnell’s critique of Boerne has much validity. What is troubling is that he has not applied similar critical analysis to the Court’s refusal to defer to Congressional action in other “federalism” cases where the rights of women, the elderly, and minorities, as opposed to the exercise of religion, are at stake. The best example is Morrison, where he has highly praised the Court’s decision not to defer to Congress but instead to overrule the Violence Against Women Act, and where he has severely criticized Congress (unlike with respect to RFRA). McConnell’s praise of Morrison has neglected the fact, however, that the Violence Against Women Act was also based on Section Five of the Fourteenth Amendment, just like RFRA. As Justice Breyer explained in his dissent in Morrison, Congress made specific findings that the law was needed to remedy
“the actions of state actors, namely, those States which, through discriminatory design or the discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women injured by gender-motivated violence” (emphasis in original).18
Rather than argue that the Court should have deferred to such findings and to Congress’ decision to act in Morrison, McConnell blithely asserted in an editorial that “the statistics are silent –- or contradictory –- on the key points.”19 McConnell’s support for decisions like Morrison limiting Congress’ authority to protect civil rights, even as he criticizes Boerne, raises serious concerns about his commitment to the progress we have made on civil rights and to the willingness he would have as a judge to protect those rights.