Lisa L. Ocheltree filed this action against her employer, Scollon Productions, Incorporated (Scollon Productions), alleging sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 1994 & Supp. 2001). Following a jury trial, Ocheltree was awarded a substantial amount in compensatory and punitive damages. Scollon Productions appeals the district court's denial of its motion for judgment as a matter of law. Because we agree that "there is no legally sufficient evidentiary basis" for the jury's verdict, Fed. R. Civ. P. 50(a)(1), we reverse and remand with instructions for the district court to enter judgment in favor of Scollon Productions.

Also of significance is the fact that the vulgarities alleged here, including "mother f----r," "faggot," "d--k head," "p-ssy," "blow job," and "ass," (J.A. at 35-36), are not "unambiguous [gender] epithet[s]," Spriggs v. Diamond Auto Glass, Inc., 242 F.3d 179, 185 (4th Cir. 2001), such that it would be reasonable to assume that they were animated by gender bias.5 The dissent disputes this final point, claiming that many of the sexually-explicit conversations portray women as "sexually subordinate" to men. Post at 28. We cannot agree that the evidence supports such a characterization; the conversations simply depict- in graphic and crude terms - heterosexual sex, including oral sex. Indeed, the conversations depict the sexual prowess of females at least to the same extent as they do males. To demonstrate that the harassment was directed at her because of her gender, Ocheltree relies upon the testimony of Hodge, in which he stated that he believed the men acted the way they did to "bother" Ocheltree. (J.A. at 202.) Hodge conceded, however, that his testimony regarding the motivation for the conduct was pure speculation. Additionally, even if the alleged harassers were intending to bother Ocheltree, there is no evidence that those participating in the offensive conduct were attempting to bother her because of her gender. On the evidence presented, the jury would not be permitted to make the inferential leap that Ocheltree's gender motivated the men's offensive behavior.

"...the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land. There is a cross-fertilization, which could see its apotheosis this spring: the Fourth Circuit is dominated intellectually by two very different conservative judges, J. Harvie Wilkinson IIIrd and J. Michael Luttig, both of whom are leading candidates for the next Supreme Court vacancy."

Wilkinson is one among many who have come to a new appreciation of judicial activism. Like the "new federalists" whose conservative thinking increasingly influences the legal mainstream, Wilkinson said he believes that the Constitution is more than just the Bill of Rights. He doesn't think that the Bill of Rights has been overemphasized, he is quick to say, but that what he calls "the structural Constitution" has been underemphasized.

"That body of the document that spells out the relationship between the federal government and the states was neglected for far too long," he said. "The power of Congress was seen as unlimited and that of the states as a virtual nullity." Wilkinson has found it exciting, he said, to be engaged in redressing this imbalance, which sometimes means striking down Congressional acts that seem to usurp state power unconstitutionally.

But he notes, because he is of judicious temperament, that judicial activism is "heady wine" and that restraint is still the greater virtue. Everything in moderation. Luttig takes exception to the view that striking down Congressional laws necessarily constitutes judicial activism. "Remember, it's sophomoric to think that invalidation of a statute equals judicial activism," he said. "Judicial activism means deciding a case based on one's own personal predilections, regardless. It might well take the form of sustaining a law that should be stricken." Several years ago, in an opinion written by Luttig, the Fourth Circuit struck down a key provision of the Violence Against Women Act. As Luttig saw it, Congress had established a federal civil right that didn't exist in the Constitution — the right to be free of crimes of violence motivated by gender — and then established the additional right for victims of such violence to sue their aggressors for damages in federal court. Congress had justified the law based on the idea — which Luttig clearly finds ridiculous — that gender-motivated violence is a national problem with a dampening effect on the economy and interstate commerce and that states have not risen to the task of tackling this problem.

Luttig ruled that Congress had overstepped its authority. A three-judge panel of the Fourth Circuit originally heard the appeal, upholding the constitutionality of the Violence Against Women Act, as had 17 of 18 federal district judges who had reviewed it. But the full Fourth Circuit vacated the liberal decision, taking the case en banc. Motz, the Clinton appointee, hinted in her dissent that her colleagues were motivated by their distaste for the act itself. "Judges' policy choices provide no basis for finding a statute unconstitutional," she wrote.

The case went up to the Supreme Court, and the Supreme Court agreed with the Fourth Circuit, 5 to 4, striking down the right of rape victims and abused women to sue in federal court under this statute. The Supreme Court version of the Fourth Circuit's ruling became the law of the land, and the Fourth Circuit and the Supreme Court jointly reinforced the principle that Congress's powers are limited.

Luttig's opinion, though, went beyond the Supreme Court's rhetorically. He began, "We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves."

"....process is our collective answer to the time-honored question, "Who decides?" Its vintage notwithstanding, many now doubt the salience of this query. We grow more passionate and argumentative over the achievement of substantive ends. And it is to those ends that process has become subservient. Process today lacks a disinterested life of its own. The important thing, it seems, is to advance on all fronts and prevail at all costs. The measure of process has become whether it can take us where we want to go - not whether it is the best route regardless of the destination. A vision of society where substantive outcomes alone are paramount thus threatens to engulf us. Some would say that it already has. Only by recommitting ourselves to process can we ensure the legitimacy of the outcomes themselves.

The Rehnquist Court has indeed invalidated many laws. However, Wilkinson says the earlier courts would "constitutionalize freely," meaning "extend constitutional rights to a point that impaired the democratic process." All judicial activism intrudes upon democratic processes, but many of the Rehnquist Court’s invalidations have "restructured democratic responsibilities," partially restoring the Founders’ understanding of the proper allocation of responsibilities.

Judge Luttig refused to let stand a lower court’s decision in Richmond Medical Center for Women v. James Gilmore. The previous judge in the case had ruled that Virginia’s ban on partial-birth abortions (PBA) was unconstitutionally vague and imposed an "unconstitutional burden" on the abortion rights of women in Virginia, because it could be read as a ban on all abortions. Judge Luttig, however, proved that the PBA law was meant to outlaw only partial-birth abortions. Only abortion providers who "deliver an intact fetus or a substantial portion thereof … while the fetus is living" into the birth canal would be found guilty under the law. In the standard abortion procedure, the doctor inserts a suction tube into the womb and removes the fetus "piecemeal by negative suction." Luttig’s detailed analysis of both abortion procedures shows that the PBA law was not vague and that it would not interfere with anyone’s rights.

In 1997, Judge Luttig overturned Rice v. Paladin Enterprises, in which a judge had found a publisher not guilty for printing a murder manual, Hit Man, that was used in an actual murder. The original judge in the case had ruled that the publisher was protected by the right to free speech guaranteed by the First Amendment. Luttig, on the other hand, ruled that Paladin was not protected by the First Amendment and was ultimately responsible for the murder. In his opinion, Luttig wrote a point-by-point analysis of the book’s instructions and showed that the murderer had followed exactly what the book said.

It may seem hard to believe that a publishing company could be held responsible for a murder. But Paladin Press had stated that it directly targeted the market of murderers or "would-be murderers" in selling the manual; it intended that Hit Man would be used by criminals in the "solicitation, planning, and commission of murder and murder for hire." Thus, "through publishing and selling Hit Man, it assisted" in this murder. Judge Luttig showed that the applicable laws here were the laws against aiding in a murder, not the First Amendment. In contrast to judges who try to find all kinds of nonexistent freedoms and rights in the Constitution, he read what was really there and showed that it does not protect speech that "aids and abets" a murder.

The Fourth Circuit Court of Appeals has the reputation of being the most conservative court in the land. One recent Fourth Circuit decision overturned Miranda--and was reversed by the Supreme Court earlier this year. Appointed in 1991, Luttig is a big reason for the circuit's shift to the activist right. He has also paid his political dues, heading the National Advisory Committee for Lawyers under President Bush in 1988 and holding various political appointments under Reagan and Bush.

The chief judge on the Fourth Circuit, Wilkinson is another big reason for the circuit's strong rightward tilt. Appointed by President Reagan in 1984, this 57-year-old has published books and articles on subjects ranging from Virginia politics to the Supreme Court and integration.

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