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Souter’s Greatest Hits


I’ve seen in several places that Souter, while an admirable justice, didn’t produce a lot of memorable quotes. I suppose this is true. But his coruscating demolitions of the Rehnquist Court’s “sovereign immunity” jurisprudence shouldn’t be forgotten. Souter is particularly good about noting that the alleged “background principles” that allowed the Court to find a prohibition on citizens suing one’s own state without its consent — although the text of the Constitution explicitly limits the prohibition to citizens of other states — are relics of monarchical systems with no obvious applicability to democratic states where governments rule with the consent of the governed. From Alden v. Maine:

It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State, which the immunity is designed to protect”…Apparently beguiled by Gilded Era language describing private suits against States as “ ‘neither becoming nor convenient,’ ”the Court calls “immunity from private suits central to sovereign dignity,” and assumes that this “dignity” is a quality easily translated from the person of the King to the participatory abstraction of a republican State…The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone’s description of royal dignity, which he sets out as a premise of his discussion of sovereignty:

“First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects… . The law therefore ascribes to the king … certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.”

It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government’s immunity from private suit, it is not dignity.


The resemblance of today’s state sovereign immunity to the Lochner era’s industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court’s late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.

However, as Souter pointed out in a previous case — in which the Court held that it would violate this mysterious “dignity” of the states to enforce agreements they made, at the invitation of Congress, in an area of plenary federal authority — to compare the work of the Rehnquist Court in this line of cases to Lochner is unfair. To Lochner:

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

I hope that Souter is right that this embarassing line of cases will ultimately be overruled. But nobody will make the case about why they should be any better.

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