By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center
Last week the Supreme Court issued two sharply contrasting decisions addressing states’ sovereign immunity from suits challenging state violations of federal law. Decided on April 20, VOPA v. Stewart involved a state Protection and Advocacy (P&A) program seeking injunctive relief to obtain medical records from state hospitals in order to investigate possible abuse and neglect of people with disabilities. Because the P&A was set up as a state agency, the state claimed it violated state sovereignty for the state to be sued by a unit of its own government in federal court. The Court disagreed with the state and allowed the claim to proceed. The next day, the Court issued Sossaman v. Texas, concerning a claim for damages by a prisoner who was not permitted to attend religious services while on cell restriction for disciplinary infractions. Again the state claimed immunity from suit; the Court agreed and dismissed the case. The apparent line separating these cases – i.e., the distinction between suits against state governments for injunctive relief vs. damage claims – may be critical for this Court. Nevertheless, the Court applied a different standard in the back to back cases. But more than this apparent double standard, the most surprising facet of these two cases, and, possibly, the most worthy of attention, is the differing and unusual mix of Justices in the majorities and minorities in each case.
We are quite accustomed to seeing the four justices nominated by Democratic presidents band together against the five justices nominated by Republican presidents, and lately the conservative Justice Kennedy has on rare occasion swung into alignment with the Democratic nominees. But in last week’s cases the four Justices in the majority on both sovereign immunity cases were the ultra-conservative Justices Scalia and Thomas, the liberal Justice Ginsburg, and Justice Kennedy. Chief Justice Roberts and Justice Alito dissented in VOPA, while Justices Breyer and Sotomayor dissented in Sossamon. Justice Kagan was recused in both cases.
The flipping of sides of the surprising gang of four – Scalia, Kennedy, Thomas, and Ginsburg – makes for an interesting line-up. Scalia, Kennedy and Thomas would have been predicted to join with Roberts and Alito in a suit involving states’ rights, and Ginsburg would have been expected to join with the other liberals in defending the rights of a prisoner to exercise his religion. So, the case provides for at least a little intrigue as to the future votes of the justices.
Getting back to the issue in the cases, the sovereign immunity of states is ostensibly based on the Eleventh Amendment to the Constitution, though the conservative justices have admittedly expanded sovereign immunity based not on the actual text of the amendment but on implicit “fundamental postulates.” The Supreme Court has held that the Eleventh Amendment protects states against suits in federal court. Recently, the Court devised a “clear notice” rule for sovereign immunity cases, questioning whether the state understood that, by taking federal funds, it would be waiving its immunity to suit in federal court. Thus, the conservative ustices have invented the legal fiction that states have no idea that federal law subjects them to litigation, even when a federal statute explicitly provides that states will be sued if they discriminate or otherwise violate federal law. The Court dresses up this doctrine of contrived state stupidity as “clear notice,” asserting that it was not “clear” to states that, by taking federal funds, they would be liable in court if they discriminate.
In Sossamon, the Court majority insisted that even though the applicable federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), specified that “appropriate relief” would be available against states, it was not “clear” that appropriate relief meant damages. The majority opinion written by Justice Thomas conceded that sometimes appropriate relief means damages. But since it does not always mean damages, states could not possibly have known that taking federal funds subjected them to liability for damages when they stopped a prisoner from exercising his religion. Thomas asserted that the term appropriate relief was “susceptible to multiple plausible interpretations,” and therefore the state could not have known that damages were included. Dissenting, Sotomayor protested that judicial interpretation of statutory text should not be “held hostage to the litigants’ strategic arguments” about their understanding of the meaning of clear terms.
Sossamon’s artificial stupidity approach was flatly rejected in the majority opinion written by Justice Scalia in VOPA. The state claimed that it did not know that a consequence of its choice to set up a P&A organization as a state agency would be to permit suit in federal court against the state by a state agency. Scalia retorted: “[The state] did not have to know that this would allow suit in federal court. Know or not know, [federal law] produces that result.” Justices Ginsburg, Breyer, and Sotomayor fully joined this opinion, with no reservations. But since Kagan was recused, one more vote was needed to get a five justice majority and overturn the decision of the Fourth Circuit.
Justice Scalia garnered not one but two more Justices for his opinion, solidifying a Court majority. Justice Kennedy wrote a concurrence, joined by Justice Thomas, describing the decision as “narrow” but proper to “vindicate the Supremacy Clause.” This concurrence is a continuation of a long string of concurrences and dissents written by Kennedy espousing the view that injunctive relief against states is desirable, due to the importance of ensuring the supremacy of federal law.
The two most surprising votes are Justice Thomas joining in the decision to permit VOPA’s suit to go forward and Justice Ginsburg fully participating in the decision to close the courthouse doors on Sossamon’s suit. Was there a strategic entente or understanding to cross over traditional partisan lines? And more importantly, will we see more of this gang of four in future decisions? Or was this just a fleeting alliance forged by the unique facts of the cases with no lasting implications? One promising possibility is that the gang of four will reunite in other cases involving injunctive relief against states, which would greatly enhance the ability of disadvantaged individuals to protect themselves against future harm by state entities.