U.s. Supreme Court at '99: Jurisprudence or Imprudent Jurists?

Publication year2021
Connecticut Bar Journal
Volume 73.




During his two terms as President, Ronald Reagan made four appointments to the United States Supreme Court. Justice Sandra Day, O'Connor was sworn in on September 25, 1981, followed by Justices Antonin Scalia on September 26, 1986 and Anthony M. Kennedy on February 18, 1988. Justice William Rehnquist was elevated from Associate to Chief Justice and was sworn in on September 26, 1986.

Mr. Reagan, as the Republican candidate for president, had promised that new appointees to the Supreme Court would be required to pass various "litmus tests" in order to qualify. Abortion, affirmative action, capital punishment, religious "accommodation," and the "unshackling" of law enforcement lay at the core of such tests. Attorney General Edwin Meese,(fn1) appointed by President Reagan in 1985, worked diligently to "pack" the federal courts at all levels with conservative ideologues.(fn2) The stated objective was to reshape the Supreme Court of the United States and turn it to the right.


Prior to the conclusion of its 1998-1999 Term, the Court's "center" shifted the Court perceptibly, albeit not radically, rightward. Aside from continuing its pattern of eviscerating the protections of the Fourth Amendment in the name of promoting the nation's endless and futile "war on drugs,(fn3)the Reagan-Bush Court (fn4) made incremental and marginal changes in such areas as separation of church and state, (fn5) abortion, (fn6) and criminal law,(fn7) while effecting more profound changes in affirmative actions (fn8) and capital punishment (fn9) law.

Based on several decisions that the Court rendered at the conclusion of its 1998-99 Term, it is increasinly clear where the Reagan-Bush justices are going and how they intend to get there. Fueled by an opinion in 1975 by then Justice Rehnquist (as a lone dissenter at the time), arguing in favor of "constitutional federalism" as a curb on federal power,(fn10) the principle of federalism has been gaining steam as a conservative analytical tool for almost a decade. It reached full throttle this past June in the form of several decisions announced from the bench in the form of a juridical tour de force, declaring the triumph of states' rights over federal authority to protect human rights.

Those same justices, who owed their appointment to condemning the "judicial activists," became what their admirers called "principled judicial activists."(fn11)


The federalism principle, a major guidepost for the Court's conservative civil rights jurisprudence in the post-Civil War period,(fn12) began its modern resurgence in 1995. In United States v. Lopez,(fn13) Chief justice Rehnquist, writing for the same bloc of justices forming the majority in the current crop of federalism decisions, opined that the Commerce Clause does not authorize Congress to prohibit the possession of guns within 1,000 feet of a school.(fn14) A key member of that majority, justice O'Connor, had earlier described federalism as an adjudicatory principle "as old as the Constitution" itself (fn15)

In Lopez, the Chief justice warned against "convert[ing] congressional authority under the Commerce Clause to a general police power of the sort retained by the States.(fn16) In his significant concurring opinion, justice Kennedy noted the fact that " [t] his case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution." (fn17)


Federalism's flashing signals in Lopez became more discernible in the following year. In Seminole Tribe of Florida v. Florida,(fnl8) the same 5-4 majority, again speaking through the Chief justice, held that Congress lacks the power under the Commerce Clause to subject a state to federal suit in federal court for violating the provisions of the Indian Gaming Regulation Act.(fn19) The principle of states' sovereign immunity as a constitutional principle undergirded by the Eleventh Amendment (fn2O) was becoming stronger with each passing year.

Seminole was not merely a major extension of the Eleventh Amendment. Chief justice Rehnquist did not stop at the water's edge while closing the Article III courthouse doors to private actions based on federal questions. The Eleventh Amendment was given additional weight in the form of a loose constitutional construction of the sovereign immunity doctrine, which went beyond the wording of the Amendment per se.

Although the text of the Amendment would appear to re-strict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposi- tion ... which it confirms."(fn21)

The "presupposition" was that state sovereign immunity, as a constitutional principle, antedated ratification of the Eleventh Amendment in 1798.


A year later, the Court's Eleventh Amendment jurisprudence underscoring the sovereign immunity of the States went even further. In a decision holding that the Eleventh Amendment barred the federal courts from hearing an Indian tribe's claim to certain submerged lands and the beds of lakes and rivers, the Court stressed "the dignity and respect afforded a State, which the [sovereign] immunity is designed to protect.(fn22) Significantly, the Coeur dAlene Tribe opinion carried Lopez and Seminole Tribe a step further, setting the stage for the Court's Tenth Amendment analysis in the Maine case reviewed below. Coeur d'Alene recognized "the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying.(fn23)

By 1997, even the Court's vocabulary was changing. It was now using the language of "dual sovereignty" for its constitutional analysis. When the background-checks scheme required under the federal gun-control law known as the "Brady Act" (fn24) was challenged by sheriffs from Montana and Arizona, the Court looked to the "structure" of the Constitution and its prior jurisprudence for guidance.(fn25) Quoting from an earlier decision, justice Scalia, writing the opinion for a sharply divided Court, declared that "the Constitution protects us from our own best intentions ... so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.(fn26)

In the course of striking down the Brady Act provision (fn27) in question - requiring the States to help administer background checks through local chief law-enforcement officers -the Court relied heavily on the Tenth Amendment. It alluded to a "constitutional design" reflecting the Founding Fathers' rejection of "the concept of a central government that would act upon and through the States" in favor of "a system in which the State and Federal Governments would exercise concurrent authority over the people - who were, in Hamilton's words, 'the only proper objects of government.(fn28)


Thus, the stage was set for decisions announced by the Court in June of 1999 in a tense atmosphere of high drama. Employing language that does not appear in his written dissent, justice Stevens charged the majority with constructing a doctrine of State sovereign immunity "much like a mindless dragon that indiscriminately chews gaping holes in Federal statutes."(fn29)


The Supreme Court, on June 23, 1999, handed down three decisions comprising a sea change in its jurisprudence. If the metaphor may be extended, the sovereignty of the individual States has flowed to near high tide while federal statutory authority has ebbed dramatically.

Supreme Court observers differ on the gravity of this trend, but they do not question its direction. (fn30) The decisions analyzed below underscore an identical principle: that the Court's broadening application of the sovereignty of the individual States insulates them increasingly from suit under federal law.(fn31)


In each of the three cases, the majority of five justices was identical: Chief justice Rehnquist and justices O'Connor, Scalia, Kennedy and Thomas. The four dissenters were justices Stevens, Souter, Ginsburg and Breyer.

A. The Maine Event: Technical Knockout For State Sovereign Immunity

In the case of Alden v. Maine, (fn32) two federal constitutional principles squared off against each other: Article (fn33) and the Tenth Amendment.(fn34) Article I lost. The Court held that the history and structure of the U.S. Constitution as well as its leading cases dictate the conclusion that Article I powers do not extend so far as to authorize private actions against States in their own courts.(fn35)

John Alden, together with a large group of probation officers, sued the State of Maine in state court for compensation and liquidated damages based on Maine's refusal to pay overtime as provided by the Fair Labor Standards Act (FLSA). The Court held "that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.(fn36)

The voluminous Alden opinion by justice Kennedy all but ignores the facts of the case and is similarly barren of statutory construction, history or analysis. Its clear purpose is to establish the supremacy of the judicial branch over the legislative and executive branches. It does so by extending federalism, a "principle as old as the Constitution," and converting it into a lethal weapon to destroy Congressional efforts to advance various human rights agendas. just as it did in the first half of this century, when it...

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