Seminole Tribe of Florida V. Florida - Dissents

Dissents

Justice Souter wrote a lengthy dissent in which he was joined by Justices Ginsburg and Breyer. Souter's dissent focuses on the language of the Eleventh Amendment, which only appears to eliminate diversity jurisdiction between states and citizens of other states. He rejects the "critical errors" in Hans, which had read common law sovereign immunity to extend the jurisdictional bar of the Eleventh Amendment to suits between states and their own citizens. Souter discounts the importance of the common law in interpreting the Constitution because the Constitution itself was such a new and unprecedented device at the time of its creation that it was clearly intended as a rejection of the common law that came before it. As support for this contention, Souter notes that the framers of the U.S. Constitution did not include language adopting the common law that had already been adopted by many of the states in their own constitutions. Souter also notes that Congress had rejected proposed language for the Eleventh Amendment which would clearly have barred suits between states and their own citizens, and which would clearly have prevented Congress from abrogating this bar.

Souter also disagrees with the Court's rejection of Ex parte Young, noting that where Chilicky was a rejection of the extra-statutory remedy proposed, Young was merely a jurisdictional device. Souter found it implausible that Congress would wish to see their statute made completely unenforceable simply because they had included a remedy for those injured by the failure of states to abide by it.

Justice Stevens dissented separately, agreeing with the points raised in Souter's dissent, but adding some additional observations. In particular, Stevens noted that neither Justice Iredell's dissent in Chisholm v. Georgia, 2 U.S. 419 (1793), nor the majority opinion in Hans had addressed situations in which Congress had specifically authorized a lawsuit against a state, and suggested that both opinions had in fact presumed that such a suit was possible.