(The Return of) Ignatz, by Sam Heldman

Saturday, August 17, 2002

Supreme Court If I told you that a Ninth Circuit judge has written a scathing book showing that the Supreme Court's "state sovereignty" jurisprudence is both legally wrong and fundamentally unjust, would you guess that it was written by a Democrat-appointee? It wasn't -- it was a conservative Reagan appointee, as Linda Greenhouse explains in this review. Let's hope that this keeps the calls for impeachment of the author to a minimum.

The basic deal -- at least one part of it -- is that the Supreme Court has decided, by a series of 5-4 decisions, that (with a few exceptions as to a rather narrow class of laws) States can't be sued in federal court when they violate their citizens' federal rights, even when a federal statute says that the States can be sued. And what's more, say the 5, the States don't even have to let you sue the State in its own courts for violations of federal statutes -- again, even if the Congress says that states can be sued.

As the review explains, Judge Noonan's book points out that this state sovereign immunity doctrine has no roots in the text of the Constitution. Indeed -- I don't know if Judge Noonan says this explicitly, he probably does, but anyway I do -- the text of the Constitution proves that the Court has gone too far. The Constitution (the Eleventh Amendment) provides one and only one protection for States against lawsuits: they can't be sued in federal court by a citizen of another state. The Constitution says that a Georgian can't sue Alabama in federal court. If it meant that a Georgian can't sue Georgia in state or federal court, wouldn't it say that? And aren't the 5 -- at least some of them -- nominally sticklers for close text-based interpretation? The answers, I think, are "yes" and "yes." Yet we're at a point where, when the State violates your rights under the Age Discrimination Act, or the Fair Labor Standards Act, or a variety of other statutes, you can't get the damages that Congress says you're entitled to, unless (good luck!) you can get the federal government to sue on your behalf. This, from Justices who are held up as models of judicial restraint (not that dreaded activism) by our President.

So, read Judge Noonan's book and either get outraged (like me) or -- if that's where your mind and politics take you -- develop a nuanced understanding that convinces you that he and I are wrong. In any event, don't think it's unimportant; it is the major legal issue of the present time.

UPDATE: Howard, at How Appealing, has pointed out that it would probably be better if, instead of following my link above to the review, you read the first page first. And, though I will probably be excommunicated by my co-conspirators at Transnational Progressivism, Inc. (?), for admitting it, I do read Stuart Buck, but hadn't read it this morning to see that he too reads the NYT.

posted by sam 7:22 AM 0 comments


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