"Soverign Immunity" and Conservative Jurisprudence

To follow-up on my article today, I should make clear that in saying that Alito and Roberts are even worse that I don't mean to let Scalia and Thomas off the hook for their role in creating the "sovereign immunity" monster -- the doctrine that the state is immune from being sued for violating its own laws -- in the first place. Since this line of cases is fairly obscure even for many people who are interested in the Court, it may be worth going into a little more detail about their broader significance.

In addition to being the latest example in the long-depressing history of conservatives on the Supreme Court putting the “dignity” of the states ahead of the dignity (and federal rights) of American citizens, these cases make clear that modern conservative jurisprudence has nothing to do with “judicial restraint” or “strict construction."  The ostensible constitutional basis for the sovereign-immunity cases is the 11th Amendment, which says that “the Judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the United States by Citizens of another State.” However, these cases involved suits brought by citizens of the states in question, which the 11th Amendment clearly permits by implication (especially since the Congress that proposed the amendment considered and rejected language that would have applied it to the citizens of the same states). But, according to Justice Scalia, “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” Or, as John Kyl may have put it, “the Eleventh Amendment was not intended to be a factual statement.”

Even those of us who strongly disagree have to concede that constitutional arguments against the Affordable Care Act have a real basis in the text of the Constitution. But this element of conservative "federalism" really doesn't.