Just read portions of the Supreme Court’s decision in Alabama v. North Carolina, issued Tuesday.
The case involved a challenge to North Carolina’s alleged failure to comply with a compact between states in the southeast over low-level radioactive waste. One issue was whether the states challenging North Carolina could sue through a Commission they had created to enforce, monitor, and administer the compact. The Court held that it was no 11th Amendment sovereign immunity problem for the Commission, technically a nonsovereign, to bootstrap onto the claims of the other states so long as they were the same claims, relying on Arizona v. California (1983).
Justice Scalia for the majority noted that Arizona had not been overruled, and that it was no problem for the Commission to sue on the backs of other states. North Carolina had noted that Oneida County v. Oneida Indian Nation (1985) may have undermined Arizona. In rejecting that argument, Scalia dropped a footnote, noting that “in Oneida, there was no sovereign plaintiff.” That would be the Oneida Indian Nation he was referring to as a “nonsovereign.”
In dissent, Chief Justice Roberts (joined by Justice Thomas) went further, arguing that Arizona‘s holding allowing Indian tribes to piggyback onto the U.S. in claims against states was simply wrong:
Understandably, the Court’s opinion leans heavily on Arizona, which has never been squarely overruled. Ante, at —- – —-. But Arizona itself is built on sand. The relevant portion of that opinion is almost wholly unreasoned. It cites only a footnote in a prior case, the pertinent paragraph of which failed even to discuss the State’s immunity from private suit. See 460 U.S., at 614, 103 S.Ct. 1382(citing Maryland v. Louisiana, 451 U.S. 725, 745, n. 21, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). That paragraph addressed only intervention, not sovereign immunity, and the two issues are distinct. See South Carolina v. North Carolina, 558 U.S. —-, —-, n. 5, 130 S.Ct. 854, 864 N. 5, — L.Ed.2d —- (2010).
Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona‘s already weak foundations. We recognized in Alden v. Maine, 527 U.S. 706, 718, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the States did not “ ‘surrender … this immunity in the plan of the convention.’ ” Id., at 717, 119 S.Ct. 2240 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A.Hamilton)); see also Alden, supra, at 718-722, 755-756, 119 S.Ct. 2240. There is no reason to suppose that the States, at the founding, made an exception for private suits that happen to mimic other plaintiffs’ claims-and neither Arizona nor the Court today suggests otherwise.