I have a review of the great former justice’s new book up at the Prospect. Anyone who proposes a constitutional amendment to eliminate the “sovereign immunity” doctrine is obviously after my own heart. Although of course a constitutional amendment isn’t necessary, at least where citizens of one’s own state are concerned — all that’s needed is to apply the 11th Amendment that is actually in the Constitution, as opposed to the one that’s been informally amended with a bunch of monarchical and neoconfederate gibberish.
As an aside, looking it up again I’m struck by how right the analysis of his Craig v. Boren concurrence remains:
There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.
I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms.
The Stevens/Marshall theory both makes more sense theoretically and probably explains what the Court is actually doing better than the “three tiers of scrutiny” theory. This particularly evident given that Kennedy has pretty much given up even trying to identify which of the three categories he’s applying in LBGT cases. But it’s been true from the beginning — anybody think that the evacuation order the Court upheld while allegedly applying strict scrutiny in Korematsu was narrowly tailored?
…I didn’t focus on it in my review, but you can read excertps from Stevens’s Second Amendment argument here.