High Court Wrongly Lets States Off Hook

In a startling series of decisions, the U.S. Supreme Court has radically changed American government. For 212 years of American history, people have been able to sue state governments when a state violates federal laws and inflicts injuries. However, on Wednesday, the Supreme Court ruled that state governments generally cannot be sued in any court without their consent.

The result is that state governments can violate federal law with impunity and nowhere be held accountable. The decisions are the height of conservative judicial activism: The five most conservative justices--William H. Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas--invented new rights for state governments at the expense of individuals.

One of the cases involved a probation officer in Maine who was owed overtime pay by the state government under the federal Fair Labor Standards Act. The court ruled that the state government’s sovereign immunity meant that it could be sued in neither federal nor state court, even if the person suing had a right to the money.

Another case involved a Florida investment method that allowed students to set aside funds to pay for college education. A company that developed the system sued Florida for patent and trademark infringement. The Supreme Court ruled that the state could not be sued in federal court, even if it had violated the company’s rights. Because federal law precludes state courts from hearing patent cases and because in the Maine case the court held that state governments can’t be sued in state courts without their consent, Florida now could profit greatly from violating the private company’s patent and trademark, and there’s nothing the company can do about it.

The cases have huge implications. A state laboratory could dump toxic wastes in violation of federal laws, and those who become ill would have no recourse against the state in any court. A state university could violate copyright laws by making copies of a book and selling it to students at a few dollars less than its usual price, profiting at the expense of the publisher and author. States could ignore patent laws, violating the rights of inventors and patent holders, and no court will be able to grant relief.

The Supreme Court based its rulings on its desire to protect federalism and state sovereignty. Yet, in doing so, the court subverted the most basic constitutional principle of federalism: the supremacy of federal law. Article VI of the Constitution mandates that federal law is supreme over the states’ and that state judges must obey federal law. The effect of Wednesday’s decision is that state governments now can ignore federal law, and no court will be available to enforce it.

The court also proclaimed that states have a “right” to be free from lawsuits without their consent, even though this right is nowhere to be found in the Constitution. The only provision dealing with the issue, the 11th Amendment, says that a state cannot be sued in federal court by citizens of other states. There is no provision that limits the ability to sue a state in state court or that prevents a state from being sued in federal court by its own citizens. The high court simply invented a new right for state governments.

Moreover, the court treated safeguarding state governments as the ultimate goal and left individuals--who are owed overtime pay, who own patents, who suffer from state environmental violations or whatever--with nowhere to turn for relief.

Over the past few years, the Supreme Court has greatly expanded the immunity of state government to being sued in federal court. But litigants still had the ability to sue a state in state court. No longer; with its ruling, the Supreme Court decreed that states cannot be sued in their own courts without their consent. The practical effect is that, with very limited exceptions, states are immune from any lawsuit for money damages, no matter how grave the injury inflicted or how wrongful the state’s behavior.

The irony is that the five justices in the majority in these three cases generally strongly oppose the court’s protection of individual rights that are not expressly mentioned in the Constitution. Two years ago, for example, the court rejected a constitutional right to physician-assisted suicide on the grounds that it was not enumerated in the Constitution’s text or intended by its framers. Yet, these same justices had no problem finding a right for state governments, even though it is not enumerated in the Constitution’s text or seemingly intended by its framers.

Rights have meaning only if there is a remedy for their violation. The Supreme Court’s decisions mean that there is no remedy against state governments even when they violate rights created by federal law. In a breathtaking exercise of judicial activism, the court has subverted the supremacy of federal law and left countless individuals without recourse.