The Future of Sovereign Immunity

Sovereign immunity, which is confirmed by the Eleventh Amendment, has enormous significance for education lawyers and their clients. Essentially, “sovereign immunity of the States” means that private individuals or corporations cannot sue the States, state agencies, or state institutions. Therefore, if a state university or a school district is considered an “arm of the State,” then both the entity and its administrators, when sued in their official capacities, generally are immune from lawsuits. During the last years of the Rehnquist Court, the Supreme Court frequently addressed sovereign immunity issues. Between 1996 and 2002, a five Justice majority – Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Thomas – effectively restored and expanded the sovereign immunity of the States. In each of these cases, this majority was opposed by a four Justice dissenting bloc – Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer. Although the Justices refused to expand sovereign immunity during the last years of the Rehnquist Court, the Court did not disturb the jurisprudential foundation that it had constructed between 1996 and 2002. With the death of Chief Justice Rehnquist and the retirement of Justice O’Connor, it is somewhat unclear where the Court stands. The fact that the Chief Justice joined Justice Thomas’ vigorous dissent in Central Virginia Cmty. Coll. v. Katz, suggests that he supports the reasoning of the 1996 through 2002 decisions. Justice Alito, who joined the Court after Katz was decided, was generally supportive of sovereign immunity during his tenure on the U.S. Court of Appeals for the Third Circuit. Thus, it is likely that there are five Justices – Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito – who will continue to support an expansive interpretation of sovereign immunity. I am optimistic about the future of sovereign immunity. Indeed, I believe that the Roberts Court will reaffirm the 1996 to 2002 precedents and will even expand the scope of the State’s sovereign immunity. In particular, I believe that the Roberts Court will: (1) limit Congress’ power to abrogate sovereign immunity to statutory claims that are also constitutional claims; (2) limit Congress’ power to use the Spending Clause to exact waivers of sovereign immunity to statutory claims that are also constitutional claims; and (3) restore a State’s sovereign immunity in the Courts of another State. The purpose of this Essay is to explain my beliefs about the future of sovereign immunity. This purpose is accomplished in three sections. First, because many readers may be unfamiliar with the Court’s sovereign immunity jurisprudence, Section I provides a general background of both the constitutional theory and recent developments in sovereign immunity. Second, because it is difficult to understand my beliefs about the future of sovereign immunity without understanding the exceptions to sovereign immunity, Section II briefly explains the exceptions to sovereign immunity – abrogation, waiver, exposure to a counter-claim, no immunity in the courts of another State, and the Ex parte Young doctrine. Third, Section III explores why I believe that it is likely that the Roberts Court will limit abrogation to statutory claims that are also constitutional claims, limit the ability to exact waivers to statutory claims that are also constitutional claims, and restore a State’s immunity in the courts of another State.