State Sovereign Immunity and the Roberts Court

Despite the centrality of the Eleventh Amendment and state sovereign immunity to the federalism jurisprudence of the Rehnquist Court, that topic has remained mostly in the shadows of the Roberts Court's first five Terms. Other than an entirely uncontroversial 2006 decision holding that counties were not protected by the Eleventh Amendment, and the Chief Justice’s own dissent in a 2010 original jurisdiction dispute where the majority sidestepped the issue, the five years since Justice Alito ascended to the bench have seen remarkably little opportunity for reconsideration of the Rehnquist Court’s approach to state sovereign immunity, even as other federalism-laden topics – e.g., the Commerce Clause, Section Five, and the scope of post-conviction habeas corpus – have routinely come before the Justices.As I explain in this essay for the Charleston Law Review’s Supreme Court Preview, that trend is likely to change during the coming Term, with two cases already on the docket that at least indirectly implicate the scope and implications of the Rehnquist Court’s approach to state sovereign immunity. In the first case, Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit held, for the first time, that state-created agencies may not invoke the doctrine of Ex parte Young as a means of avoiding the Eleventh Amendment in suits for injunctive relief against state officers. In the Fourth Circuit’s view, “federal court adjudication of an ‘intramural contest’ between a state agency and state officials encroaches more severely on the dignity and sovereignty of the states than an Ex parte Young action brought by a private plaintiff."In the second case, Sossamon v. Texas, the Fifth Circuit waded into a circuit split as to whether states knowingly waive their sovereign immunity when they accept federal funds under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), given that § 4(a) of the Act creates a cause of action for “appropriate relief” against “a government” for violations of the Act. The Fifth Circuit reasoned that “RLUIPA is clear enough to create a right for damages on the cause-of-action analysis, but not clear enough to do so in a manner that abrogates state sovereign immunity from suits for monetary relief.”Whatever might be said about the merits of either decision, it seems clear that both present questions as to the appropriate scope of state sovereign immunity on a scale heretofore unseen in the jurisprudence of the Roberts Court. And although this preview essay does not attempt to predict what will happen in either Stewart or Sossamon, it does aim to situate these two cases in their broader context – to explain both why they are such important bellwethers for the Roberts Court, and to suggest what, if anything, we might learn from their resolution. Ultimately, how the Court handles these two cases may provide crucial insight into whether the current Justices will embrace the approach of their predecessors and thereby follow the same ideological chasm that pervaded the Rehnquist Court’s state sovereign immunity jurisprudence, or whether something might change.