an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The 2010 Term, the Spending Clause, and State Sovereign Immunity
Understandably lost in the other news coming out of the Supreme Court this morning was its decision to grant certiorari in Virginia Office for Protection & Advocacy v. Reinhard, a case coming out of the Fourth Circuit. Specifically, Reinhard raises whether state-created agencies (created to enforce the state's compliance with a particular federal statute in exchange for federal funds) are allowed to invoke the Ex parte Young "exception" to the Eleventh Amendment in suits against states for prospective relief. The Fourth Circuit, in an opinion by Judge Wilkinson, held that they could not. [Full disclosure: I co-authored an amicus brief in support of certiorari in Reinhard.]
As I've noted previously, the grant in Reinhard was all-but foreordained. Even if it wasn't enough that the SG (whose views the Court solicited) recommended the grant, the Seventh Circuit effectively sealed the deal in late April, when, sitting en banc, it unanimously disagreed with the Fourth Circuit's analysis, holding in a closely analogous case that there was no reason why the identity of the plaintiffs should matter under Ex parte Young.
Whatever one's views of the merits of this issue, Reinhard is now the second major state sovereign immunity case on the Court's docket for the 2010 Term; last month, the Court granted certiorari in Sossamon v. Texas, which raises whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) validly subjects states (and state officials in both their official and individual capacities) to damages liability. The argument there is not that RLUIPA abrogates the state's sovereign immunity, but rather that states, in accepting funds under RLUIPA, are voluntarily waiving their sovereign immunity.
Together, then, Reinhard and Sossamon may well make the 2010 Term the bellwether for the Roberts Court when it comes to either following or retreating from the Rehnquist Court in one of the latter's more controversial areas of jurisprudence. Indeed, the Supreme Court's last significant decision in this area was one of the last cases in which Justice O'Connor participated--Central Virginia Community College v. Katz in 2006. There, a 5-4 Court (with O'Connor surprisingly in the majority) held that Congress could abrogate state sovereign immunity pursuant to the Bankruptcy Clause of Article I, even though the entire foundation of the Seminole Tribeline of cases was that Congress could only subject non-consenting states to suit pursuant to the enforcement clauses of the Reconstruction amendments (and not pursuant to any of its Article I powers--including, one would think, the Bankruptcy Clause). One may well suspect that Justice Alito does not hold his predecessor's views on this issue (or, at least, her latest views as manifested in Katz), but, in four Terms, the issue has yet to squarely arise (assuming one doesn't count Chief Justice Roberts's dissent earlier this month inAlabama v. North Carolina).
It is definitely worth debating these issues on the merits, especially in the unique context of the Spending Clause, where, in my view, there is a fairly strong argument that (so long as the regulation survives South Dakota v. Dole), the states really are voluntarily waiving their immunity. But for the moment, and for those who can't wait to look forward to the Court's upcoming Term (perhaps as a distraction from what's likely to come in the next 10 days), it seemed worth noting the atmospherics, too. I suspect that it's still too early to decide whether the Roberts Court is as deeply committed to federalism as its predecessors, but if these cases are any guide (Sossamon, especially), we should know a lot more by this time next year.
I'm curious whether sovereign immunity (11th Amendment) and judicial immunity are separate and distinct or interconnected. Perhaps some legal historians can share some thoughts. While apparently sovereign immunity can be waived (by various means, including acceptance of federal funds), it is not clear that judicial immunity might be similarly waived. My concern is with state judiciary and its personnel being vulnerable to damage claims in federal courts (including bankruptcy). Of course, federal judiciary and its personnel seem well protected (other than by means of impeachment?).
An interesting issue you raise here! Recently, I have become more and more interested in the problem of Balkanization (also Globalization, Multiculturalism, Trans-nationalism...and other dealing with co-existence and interaction of various cultures and nations...)...