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Today at the Court


Anytime a “sovereign immunity” claim loses, I’m happy.

It’s interesting to see that Scalia wrote the majority opinion.   As I’ve said before, the whole line of sovereign immunity cases are a particular embarrassment to Scalia’s “textualism.”   Say what you will about conservative commerce clause jurisprudence, but it rests on at least a plausible textual foundation.   But the 11th Amendment — unlike the due process or equal protection clauses — has very specific language.  It could have but doesn’t apply to citizens suing their own state.   (It’s particularly amusing to see Scalia join opinions that construe “another State” to read “own State” given his certainty that the 14th Amendment is silent on the question of gender.)    Rehnquist has conceded as much (“we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”) Whether right or wrong, that’s the kind of reasoning Scalia enjoys making fun of when other people use it.

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