May 30, 2002

TED BARLOW is dissing the Supreme Court for its state sovereign immunity decisions. He’s right to dis them — but wrong to blame the Rehnquist Court in particular, which is just following a long line of stupid decisions in this area. This utterly screwed-up line of cases started with Hans v. Louisiana in 1890, and it’s been continued by every Court since, regardless of political position. I don’t know why, and I’ve asked a lot of law professors, most of whom seem mystified at the Court’s near-religious enthusiasm for extending state sovereign immunity way beyond the letter of the Eleventh Amendment.

It’s true, of course, that the Eleventh Amendment cases are a substantial degree of departure from the text for a Court with many justices who say they’re strict constructionists. (It’s so true, in fact, that I wrote a law review article saying that in 1992, called “Penumbral Reasoning on the Right,” in the University of Pennsylvania Law Review). But in a way this illustrates the meaninglessness of the term “judicial activism.” On the one hand, the Court is way outside the text of the Constitution, which can certainly be characterized as activist. On the other hand, its recent decisions are entirely consistent with a line of cases that’s over a hundred years old, which could be considered respectful of precedent and hence not activist at all.