Finally, the Second Eleventh Amendment Brief (or Our Long National Nightmare Is Over!)

Following up on my two previous Citizens United-related posts (here and here), along with various Twitter messages regarding the continuously forthcoming “second brief” on the 11th Amendment, it appears the long-awaited second brief has finally been posted on the TEAM website. Unlike the TEAM brief, this second brief does address the relevant distinction between the Supreme Court’s original and appellate jurisdiction.


First, however, a little background (feel free to skip!): A while back, the Montana Supreme Court rejected Citizens United based (in part) on Montana’s special history of fighting corruption. That decision was appealed to the U.S. Supreme Court. In connection with the Court’s decision whether to hear the appeal, an organization called The Eleventh Amendment Movement (“TEAM”) filed an amicus brief arguing that the 11th Amendment deprives the Supreme Court of jurisdiction to review the Montana Supreme Court’s decision. For general information regarding the Montana case and the Supreme Court’s review, I recommend SCOTUSBlog.

I previously discussed TEAM’s brief and observed that it did not address two of the problems with the 11th Amendment argument that I’d raised in my initial post: (1) even if the 11th Amendment bars review in this case, it would not bar review of an enforcement action initiated by the state, meaning that the Montana statute would still be subject to future reversal by the Supreme Court given a different procedural posture, and (2) while the 11th Amendment certainly applies to suits originally filed against states in federal court, it doesn’t apply to the Supreme Court’s appellate jurisdiction.

Well, TEAM quickly responded to my post (thank you TEAM!) and let me know that a second “companion” brief from a different organization was forthcoming. This second brief, I was assured, would “answer[] all [my] good, salient points.” (And yes, I am totally susceptible to flattery; thanks again TEAM!) According to TEAM, the companion brief was being submitted by an organization called Essential Information, which was “founded by Ralph Nader.” I had never heard of Essential Information, nor could I find much of anything about it online, but apparently it is a “non-profit, tax-exempt organization involved in projects encouraging active citizenship, including by providing information on topics important to the public, the media and policy makers.” That’s according to the Essential Information brief, which is signed by Robert M. Hager of Northfield, Minnesota. (Shout out to St. Olaf College and Carleton College!) If anyone knows anything more about Essential Information or about Mr. Hager, I’d be interesting in learning more.

The Essential Information Brief

So what does the Essential Information brief say? Well, it doesn’t say anything about my “procedural posture” argument. Like I said before, there’s no need for TEAM or Essential Information to discuss a hypothetical future enforcement action in their amicus briefs. The Supreme Court doesn’t need to hear about that. But I still think TEAM and Essential Information owe their supporters some explanation of why their efforts, even if successful, are not just going to get undone as soon as some enforcement action gets appealed to the Supreme Court. If/when either group provides an explanation, either through Twitter, email, or its website, I’ll certainly link to it here.

The Essential Information brief starts by echoing TEAM’s call for a rejection of Ex parte Young as an end-run around the 11th Amendment. But Young is about the filing of declaratory/injunctive cases in the federal district courts. This case, however, was initiated in Montana state courts and appealed up to the Montana Supreme Court. Accordingly, the application of Ex parte Young doesn’t matter unless the 11th Amendment applies to the Supreme Court’s appellate review of final judgments of the states’ highest courts. Young or no Young, if the Supreme Court’s appellate jurisdiction is not restricted by the 11th Amendment, then TEAM’s/Essential’s arguments are beside the point.

And what about the Supreme Court’s appellate jurisdiction? Essential Information says that the 11th Amendment applies just as much to appellate jurisdiction as it does to a district court’s original jurisdiction. As I said at the outset, the text of the Amendment seems to support this view: It restricts the “Judicial power of the United States” in “any suit in law or equity.” One could interpret “suit” to apply only to the initiation of a suit, as opposed to an appeal, but “any” is pretty broad, and a restriction on the “Judicial power” would seem to apply to all exercises of the judicial power — both original and appellate.

The problem for Essential Information is that, while its reading of the 11th Amendment is certainly tenable, and maybe even better as a purely textual matter, it goes against hundreds of years of Supreme Court precedent. And unlike Young, where Essential and TEAM basically admit that they are asking the Supreme Court to overrule prior decisions, on the appellate jurisdiction question Essential’s brief reads like a straight application of Supreme Court precedent. But it’s not.

For example, the brief quotes College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), for the proposition: “[A] State does not consent to suit in federal court merely by consenting to suit in [its own] courts.” Sure, that single line could mean that, by allowing suits against the state in state court, a state does not consent to Supreme Court review of its judgments in such cases. But that’s not what it means. College Savings was a case filed initially in federal court. The question for the Supreme Court was whether the provision for claims in state court amounted to consent for the filing of claims in federal court. Supreme Court appellate review was not at issue.

A better example: The brief cites to Justice Souter’s dissent in Seminole Tribe v. Florida, 517 U.S. 44 (1996), stating that “Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts.” Now that’s a good quote. But of course, Justice Souter doesn’t actually believe that to be the law, nor does he think the Seminole Tribe majority believes that to be the law. Rather, in making that statement, Justice Souter is attempting to point out the absurd applications of (his view of) the majority’s reasoning in Seminole Tribe. How do I know this? Well, right after the quote used in the Essential Information brief, Justice Souter says the following regarding the Supreme Court’s appellate review of suits against states:

And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a private plaintiff for money damages.

So there you go. Despite a few out-of-context quotes, or perhaps the vast extension of some cases to places the Supreme Court has never gone, the Essential Information brief is basically asking the Supreme Court to overrule the line of cases that “again and again [the Court] [has] entertained” under its appellate jurisdiction.

Of course, there’s nothing wrong with that. But I think it’s illustrative of the uphill slog Essential Information and TEAM have when, in order to win, they need to ask the Supreme Court to overrule two lines of cases, each of which has been around for more than 100 years. (I should add as a disclaimer that, while I know the Supreme Court has used such language in the past, I’m usually not persuaded by 11th Amendment arguments based on generalized notions of the states’ “dignity,” whatever that means. Both TEAM’s and Essential Information’s briefs put a good deal of weight on the Constitution’s protection of state dignity, and argue that that “dignity” favors the extension of the 11th Amendment in the manner they argue. I tend to think that a state’s “dignity,” if it has any, is not sufficient to trump the protection of actual substantive rights held by individual citizens of the United States.)


Okay, a few final thoughts: I think it’s interesting when the left (of which I would count myself a member) uses the “States’ Rights” language of the right to advance a progressive agenda. That’s why, in my first hypo, I used an Equal Protection Clause example, where women sued the state for damages and received unequal payments explicitly because of their sex. I recognize that the Constitution prohibits the filing of such cases in federal district court. But do we really think the Supreme Court does not have appellate review over such judgments? What would it mean for our constitutional structure or for federalism if the Supreme Court didn’t have that power?

Supreme Court appellate review does not leave the state defenseless against federal power. A state can always refuse to provide jurisdiction to its own citizens in the state courts for claims against the state. Such a denial of jurisdiction would mean there would be no state supreme court decision for the U.S. Supreme Court to review, and therefore no federal court meddling into state affairs. But once the state decides to extend its “judicial power” to the claims of its citizens, then the supreme “judicial power” of the United States will operate to review the state’s exercise of that power (as long as there is a federal right at stake).

The more interesting question, I think, is whether a state could set up an administrative quasi-judicial process for claims by its citizens against the state, and deny the state’s courts any jurisdiction to review of those decisions. It would be something like mandatory, final, non-appealable, binding arbitration for citizen claims against the state seeking money damages. What would the U.S. Supreme Court (or the lower federal courts) do with such a system? (Perhaps there is already case law on this?) Assuming there are federal rights at issue, could a citizen petition for cert directly to the Supreme Court, arguing that the quasi-judicial proceedings were the state’s exercise of its highest judicial power, and therefore subject to review in the Supreme Court? Since the citizen is suing for money, there really wouldn’t be much of a chance for an appealable enforcement action. And I don’t think Ex parte Young would be much use. What could the citizen do? After losing on the claim, sue in federal court to… invalidate the administrative decision? But then what? Even under Young, the federal court couldn’t order the administrative body to enter a decision in favor of the citizen, since such an order would be the equivalent of money damages from the state. And what’s the relevant inquiry? Could there be a Due Process claim that this strange state procedure denies its citizens due process of some sort? Hmmm….


2 thoughts on “Finally, the Second Eleventh Amendment Brief (or Our Long National Nightmare Is Over!)

  1. Pingback: The Eleventh Amendment Throws in the Towel | Ziff Blog

  2. Pingback: The [No Specific Day] Mash-up: June 1, 2012 | Ziff Blog

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