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Tuesday, October 11, 2011

Justice Stevens and State Sovereign Immunity

Lots of folks have been writing about Justice Stevens' new memoir, Five Chiefs, and the various interesting tidbits and/or omissions in/from the book.  One point I haven't seen addressed yet, though, is the book's near-obsession with the topic of state sovereign immunity, especially in its summary of the Rehnquist Court and the Epilogue.  It's quite striking to me, for example, that in a Term that included Wal-Mart, Concepcion, al-Kidd, Bennett, Winn, and a host of other cases (i.e., the October 2010 Term), Justice Stevens singled out VOPA v. Stewart in the book's Epilogue as perhaps the most significant decision the Court handed down last year. 

Don't get me wrong--I've written quite a bit on why Stewart was and is such an important case; I just never thought anyone else agreed with me! More to the point, I wonder if others reading the book had the same reaction that I did--and have any explanation for why, of all the cases with which to end such a story, Justice Stevens decided to go with a little tiny case about the ability of state-created agencies to pursue relief under Ex parte Young? I have my own thoughts, including that, from Justice Stevens' perspective, state sovereign immunity might be one of the more vulnerable bodies of Rehnquist Court jurisprudence going forward (see, e.g., his majority opinion in Central Virginia Community College v. Katz), but am curious if I'm alone on this one...

Posted by Steve Vladeck on October 11, 2011 at 01:04 PM in Books, Constitutional thoughts, Steve Vladeck | Permalink

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I read the book and don't know about saying he had some "near-obsession" on the issue though it is pretty basic [a right brings a remedy, so says Marbury v. Madison, so if you can't sue the state, how strong is your right?] and a major point of division on the Rehnquist Court, the four justices in dissent repeatedly refusing to accept precedential weight to the cases involved.

As to the fairly obscure case cited, I too was surprised about that, since I personally thought there were other more "significant" cases (Cato in its annual volume did not even cite it, to my knowledge, it surely didn't have a chapter on it).

I have the book in front of me and Stevens notes that the dissent said that if the majority (by Scalia) was right two, cases -- including one basic to upholding state sovereignty -- would be threatened. That and the fact Scalia's opinion upheld the power of the federal courts to protect individual rights furthered Stevens cause here.

Posted by: Joe | Oct 11, 2011 2:09:55 PM

Steve,

I noticed that and was intrigued by it and I'm glad you were too. My best guess is that the assertion was aspirational.

Posted by: Will Baude | Oct 11, 2011 2:40:42 PM

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