NARROWING THE NATION'S POWER: The Supreme Court Sides with the States

This is a readable introduction to a legal issue that may sound obscure but in fact has an impact on issues relating to discrimination and other important areas of the law. Noonan, a senior federal appellate judge, dissects an emerging trend in recent Supreme Court decisions bolstering the sovereign immunity of the 50 states—that is, saying the states and their many agencies (including state-funded universities, for example) are immune from lawsuits by individuals for money damages. Writing as a historian, Noonan examines the common-law origins of the doctrine that a sovereign monarch is immune from suit; he finds the doctrine absent from the Constitution. Nevertheless, as he recounts, a connected series of cases decided by the Supreme Court since 1997 has invoked sovereign immunity. For example, the Court has decided that individuals may not recover compensation from states (or from many state-related entities) for patent infringement or for discrimination on the basis of age or disability. Similarly, federal laws granting remedies for violence against women or protecting religious freedom cannot be enforced by individuals suing a state. Writing as an advocate, Noonan briefs the case against what he views as the Court's sudden expansion of sovereign immunity. Not only does state immunity lack a constitutional basis, Noonan argues, but the doctrine also improperly interferes with Congress's power to enact protections for Americans on a national scale. Noonan concludes that sovereign immunity is an outmoded abstraction, disconnected from concrete injustices inflicted by the states, and remains "without justification of any kind today." Noonan's compressed and subtle treatment of current immunity jurisprudence should trigger further debate on this important area of law. (Aug.)

FYI:A recent Supreme Court decision provoked an op-ed piece in the New York Times by Cass Sunstein, underscoring the importance of this issue.