January 23, 2006

O'Connor's vote decides the sovereign immunity case.

SCOTUSblog reports:
No. 04-885, Central Virginia Community College v. Katz, affirmed 5-4, in an opinion written by Justice Stevens, declining to apply the Seminole Tribe sovereign immunity doctrine to claims brought under the Bankruptcy Clause. Justice Thomas dissented, joined by the Chief Justice and by Justices Scalia and Kennedy. Interestingly, if this decision had not been ready to be issued today, the case might well have been held over for reargument. It's the first decision of the Term in which Justice O'Connor cast the deciding vote and in which Justice Alito would likely have come out the other way.
Very interesting. I'll read the case and have more later.

UPDATE: Here's a lucid explanation of the issues in the case. I will not burden you with detail on the difficult sovereign immunity case law. But I will express my exasperation with this case. The majority is made up of Justice O'Connor and four Justices who have shown very little regard for sovereign immunity. All four have been adamantly opposed to Seminole Tribe, the case that held Congress lacked the power to abrogate state sovereign immunity using the commerce power. And Justice Stevens, who writes the new majority opinion, was among the four Justices who back in the 1980s voted repeatedly to overrule Hans v. Lousiana, a change that would have eradicated sovereign immunity in any case based on federal law, regardless of whether Congress had acted to abrogate that immunity. So O'Connor was the only Justice in today's majority who has taken sovereign immunity seriously in the past, as have all the members of today's dissent (Justice Thomas, who wrote the opinion, and the Chief Justice and Justices Scalia and Kennedy). Why did O'Connor join the Justices she's disagreed with in the past? Her vote is mute, as she wrote no concurring opinion. It reminds me of Justice White's failure to explain his position back in Union Gas. Though he had in other cases voted along with the four Justices who supported Hans throughout the 1980s, he joined the Hans opponents to hold that Congress had the power to abrogate sovereign immunity using the commerce power. He wrote a concurring opinion, but only said that he didn't agree with much of the majority's reasoning. Union Gas was thus left in a weak state, and it was Union Gas that the Court overruled in Seminole Tribe.


37383938393839383938383 said...

Interestingly, Thomas' opinion provides direct quotes that prove Stevens and O'Connor are contradicting their earlier positions. I find that amusing.

nunzio said...

O'Connor certainly keeps things interesting. Nothing is really settled with her.

Of course, she could have just repudiated Seminole Tribe, but didn't do that either. Inscrutable are her ways.

Smilin' Jack said...

Now that Alito's on the way, she's already checked out. She probably just flipped a coin.

cslick said...

What is the possibility of seeking rehearing on this case once Judge Alito is confirmed? Is that something the court would categorically decline to do out of respect for Justice O'Connor?

Simon said...

I have to admit that I am uneasy about the drift of the Court's sovereign immunity jurisprudence. Since Hans v. Louisiana, the Supreme Court has held that the meaning of the Eleventh Amendment is irreconcilable with the text of that amendment, in order to uphold an incoherent doctrine that might be considered “Sovereign immunity’s greatest hits;” indeed, "Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent," Killian & Costello, The Constitution: Analysis & Interpretation, 1992 Ed., at p.1521. It seems highly tenuous to construe the Eleventh Amendment, explicitly against its own terms, so as to preclude suits against a state by their own citizens.

While I am decidedly unimpressed with the eleventh amendment as a grounding for sovereign immunity, I'm not even entirely sure, as a general matter, the discussion is necessary. Blackstone explained that the state held immunity from suit, because:

"[The King] is said to have imperial dignity . . . He owes no subjection to any other Earthly potentate. No suit or action, even in civil matters, can be brought against the King, because no court can have jurisdiction over him."

(I W. Blackstone Commentaries on the Laws of England 110; M. Gavitt ed. 1892, 1941 reprint). Whatever else we might say, we can say at least this: at the time the Constitution of the United States was framed and ratified, it was widely understood that the sovereign, whomever or whatever that might be, did not so much enjoy immunity from prosecution, as much as they were, literally, beyond prosecution. Since all law and the means of enforcing them were dependent upon the sovereign, the sovereign was, by definition, beyond their control.

This logic would seem to withstand the passage of time. The modern definition of sovereignty is, "the supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived . . . The power to do everything in a state without accountability – to make laws, to execute and to apply them" Black’s Law Dictionary, p.1568 (Rev. 4th Ed., 1968). Sovereignty, obviously, is exercised by a sovereign, which is, in the modern formulation: "A person, body or state in which independent and supreme authority is vested; a chief ruler with supreme power; a king or other ruler in a monarchy," Black’s Law Dictionary, p.1395 (6th Ed., 1990).

No lesser a personage than Joseph Story defined sovereignty broadly:

"[A]ntecedent to the Declaration of Independence, none of the colonies were, or pretended to be sovereign states, in the sense, in which the term "sovereign" is sometimes applied to states. The term "sovereign" or "sovereignty" is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions. By "sovereignty" in its largest sense is meant, supreme, absolute, uncontrollable power . . . [T]he absolute right to govern."

(II J. Story, Commentaries on the Constitution, §207).

But hang on a second - does this really describe the American scheme of government, at either a state or federal level? Does the Congress of the United States really exercise "paramount control of the constitution and frame of government and its administration"? Does the Governor of a State really enjoy "[t]he power to do everything in a state without accountability – to make laws, to execute and to apply them"? Is a state legislature really "a body . . . in which independent and supreme authority is vested"? Is the President of the United States really "a chief ruler with supreme power"? Such a result seems profoundly at odds with our system of government.

Indeed, the government of the United States is explicitly denied such power:

"[T]he Constitution is an effort to place rules and restrictions on lawmakers and enforcers; [the] Constitution was put in writing to better preserve these restrictions . . . [and] that purpose for putting these restrictions in writing would largely vanish if lawmakers (or judges) could change the rules by which laws are made."

(Barnett, The Original Meaning of the Judicial Power, p.6) (cf. Tome v. United States, 513 U.S. 150) (1995) (Scalia, concurring).

It seems to me that sovereign immunity, state and federal, as it is currently understood, rests then on an exceedingly dubious proposition: that the government is the sovereign. It demonstrably is not. While the immunity of the sovereign, as described by Blackstone, seem unassailable, I would posit that in America, following the revolution which deposed the King as the sovereign authority, that authority devolved to the people of the United States, not any government which they instituted. I would suggest that the Court's sovereign immunity jurisprudence since at least Hans has set out in the wrong direction on the shakiest of moorings; instead of falling back on the standbys of Hans and Seminole Tribe, I think it would be best to start again from scratch, that is, to determine whether states were understood to be immune from suits in the first place, and to ground future jurisprudence on that evidence, rather than an amendment that, by its own terms, denies such a construction.