INTRODUCTION

United States v. Morrison involved the constitutionality of the private cause of action authorized by the Violence Against Women Act (VAWA). The District Court and the Fourth Circuit en banc dismissed Christy Brzonkala's complaint against James Crawford, Antonio Morrison, and Virginia Polytechnic Institution. The U.S. Supreme Court affirmed the dismissal and held that: (1) VAWA's private cause of action exceeded congressional authority under Article I's Commerce Clause because gender-motivated violence was a noneconomic local activity that did not substantially affect interstate commerce; and (2) the Fourteenth Amendment's Enforcement Clause did not allow remedial measures against private actors. Justices Souter and Breyer wrote separate dissents. Both dissenters argued that gender-motivated violence was well within the purview of the commerce power, and neither discussed the validity of VAWA's private right of action under the enforcement power.

Professor Aníbal Rosario Lebrón, writing as a dissenting Justice, details the facts in Morrison quite differently than do the original majority and dissenting opinions. For example, Chief Justice Rehnquist's majority opinion briefly and succinctly described Crawford and Morrison's alleged attack on Brzonkala as an “assault[]” and “repeated[] rape[].” Morrison's debasing remarks about what he liked to do with women (delivered some months after the alleged rape) were vaguely described as “vulgar remarks that cannot fail to shock and offend.” The dissenting opinions authored by Justices Souter and Breyer did not mention the terms rape or assault in relation to Brzonkala, nor did the dissenters refer to Morrison's post-attack comments.

Rosario Lebrón's narrative explicitly adopts a situated perspective. Rosario Lebrón challenges neutrality as the proper tone of judicial opinions, as well as the concept that judicial language is somehow disconnected from patriarchy. Rosario Lebrón intentionally excludes a discussion of Brzonkala's race and the race of her alleged attackers, believing that such a discussion detracts from how gender-motivated violence perpetuates both physical and economic dominance over women. Nor does Rosario Lebrón mention that Brzonkala had been drinking prior to the alleged rape, believing that to do so would constitute re-victimization.

Rosario Lebrón's personalization of Brzonkala's story offers more than a strict and legalistic narrative of her “encounter” with Crawford and Morrison.