Dispatches from the Creation Wars

Adam Cohen has an op-ed piece in the NY Times entitled Psst … Justice Scalia … You Know, You’re an Activist Judge, Too. He writes:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution’s plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

I’ve made this argument myself on the basis of many other examples, but Cohen offers the example of the 11th amendment jurisprudence. I should say up front that I have not read the decision he refers to here and know little about the subject, so I can’t vouch for the accuracy of what Cohen says here. We often find in judicial opinions that they can be oversimplified easily to make them look far less reasonable than they are, so we shouldn’t necessarily accept such examples on face value without looking up the decision itself. He doesn’t indicate what case he is referring to, so it’s difficult to do so in this case. Nonetheless here is Cohen’s argument:

Justice Scalia’s views on federalism – which now generally command a majority on the Supreme Court – are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants’ rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states’ rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by “Citizens of another State, or by Citizens or Subjects of any Foreign State.” But it’s been interpreted to block suits by a state’s own citizens – something it clearly does not say. How to get around the Constitution’s express words? In a 1991 decision, Justice Scalia wrote that “despite the narrowness of its terms,” the 11th Amendment has been understood by the court “to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” If another judge used that rationale to find rights in the Constitution, Justice Scalia’s reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Does anyone know what case this refers to and if this is a fair representation of Scalia’s opinion in the case?


  1. #2 Jon Rowe
    April 20, 2005


    You are so focused on the law & courts (and you know more about the subject than most lay-people, and probably many lawyers who don’t specialize in Con Law)…when are you going to go to law school?

  2. #3 Ed Brayton
    April 20, 2005

    Jon wrote:

    You are so focused on the law & courts (and you know more about the subject than most lay-people, and probably many lawyers who don’t specialize in Con Law)…when are you going to go to law school?

    Funny, Sandefur emailed me and asked me that same question the other day. The answer is likely never. It would take about 5 years to complete all that is required, and in the meantime I’d have to give up pretty much everything other than my business to pursue it. That’s just not worth it to me. Alas, I am doomed to be an amateur.

  3. #4 Melody
    April 20, 2005

    In the aforementioned case, the controversy was to recognize the tribe as a sovereign state, residents of the state, or a foreign state, which has been an ongoing problem that all Indian tribes have faced in the past. Unfortunately, part of this is the use of the terms “state” and “nation” interchangeably when referring to Indian tribal communities.

    The wording in the Constitution uses the word “Tribe”. In US Code Title 28, Part IV, it states, “The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”

    In the recent past, the Mississippi Band of Choctaws won a lawsuit against them by the state of Mississippi for tax evasion. Since they are recognized as a “sovereign nation”, they are not required to pay state taxes (as per their compact). The word “nation” is used as opposed to “tribe” or “band”.

    So, this is a good example of a state suing a sovereign nation. It is my recollection that Mississippi did not ask for the federal courts to intervene.

    Question: How does this play in the 11th Amendment arena and the case involving the equally sovereign nation in Alaska?

  4. #5 Ed Darrell
    April 20, 2005

    Ed, you could always move to one of those states that allows a guy to “read for the law,” and take the exam after a year.

    Do you know for a fact that you don’t live in such a state?

  5. #6 Ed Brayton
    April 20, 2005


    First I’ve ever heard of such a thing.

  6. #7 spyder
    April 20, 2005

    While Cohen chose to use a case from a strand of law that involves a quagmire of legal opinions contradicting one another, he was trying to cite an example of Scalia’s hypocrisy. We would have been better served had he picked another strand, like privacy or education.

    American Indian legal issues stem from three key sections in the Constitution. The Commerce Clause found in Article One Section 8 and its associated clause one of Section 10; Article 6 Section 2; and the 10th Amendment. Congress has the power to make laws regarding commerce with and between Indian tribes, as long as they don’t violate existent treaties, and/or create rights from those of the states with regard to the tribes on reservations within those states. It is this convoluted mishmash with which Indian gaming and casinos find themselves struggling.

    I suspect there will be some new cases along these lines regarding the drilling of the north slope areas, as certain Inuit tribes have treaty rights, not lost in the alaskan corporation charters.

  7. #8 Melody
    April 21, 2005

    Agreed Spyder. Although there are always actions taken between Indians and our government, we don’t hear about them until it looks like the Indians might win!

    No one has yet to get outraged at the Peabody Coal company, a foreign entity, that has been starving the Dinai off their own land for 30 years or so now. The same tribe faces encroachments from NATO in the NorthWest.

    I believe this stems from the Indian Appropriations Act that left the Indians unable to represent themselves to the federal government. Indians have long sought to have a delegation recognized by Congress in order to establish equitible business realtions.

    On a tight budget, they have been put in the position of defending their rights, as opposed to having their rights protected. Title 28 neglects to give judicial enforcement of treaties, and the supreme court apparently is blocked from the review of treaties made between Indians and states/federal gov’t.

    It is well-stated in the Indian Manifesto of 1972:
    “If the Arab States of the present Mid-East could comparably presume the same authority over the State of Israel, they could eliminate Israel by the purchase or by declaring it an Arab State or subdivision thereof, on the one hand, evicting the Israelis from the newly-acquired Arab lands, or on the other, allowing the Israelis to remain as part of the larger Arab Nation and justify the disposition to the world by the claim that, whether leaving or remaining, but without their nation, the Jewish people would still be Jewish. Such an unacceptable outrage to American people would quickly succeed to World War III…”

  8. #9 Johan Richter
    April 21, 2005

    I think that involning indian law in the discussion is confusing. The result what have been just the same if were some one else than a Indian tribe that was suing. I have not read the particular case that the qoute was fróm but I think it is a fair description of Scalia’s position in these cases in general. (There has been a long line of cases where Scalia has voted for extending states immunity from suit.)
    The case thatstablished that states are immune from suit by their one citizens is however old, it is Hans v. Louisiana from 1899.
    There are actually two criticisms of Scalia’s position that states should be immune to most suits. The 14th amenment is construed by the Supreme Court to allów Congress to override the immunity in the protection of civil liberties. Some people say that Scalia and the other conservatives are far to happy to strike down such laws if they do not happen to agree that they are neccessary.
    The other criticism is that there should not be so much immunity in the first place. The 11th amendment protects the states from suits by citizens of other states. Scalia has interpreted the Constitution to also immunize the states from suits by their own citizens and from suits in quasi-judical bodies like executive commissions.
    He has not really managed to motivate these opions from the text of the Constitution. Instead he talks about how this immunity is inherent in the american system of federalism.
    Cases where he wants a expansive state immunity include: FEDERAL MARITIME COMMISSION v. SOUTH CAROLINA STATE PORTS AUTHORITY et al;Tennese student assistance corporation v. Hodd and other cases that are cited therein.

    Cases where Scalia

  9. #10 Melody
    April 21, 2005

    I focused on the Indian situation based on Blatchford v. Native Village of Noatak, the case cited in the initial post on this thread.

    The 11th Amendment is the one cited in many petitions to the supreme Court by Indian tribes, so I thought it was definitely pertinent to this discussion.

    I don’t think it “confuses” the discussion because, as you said, “The result what have been just the same if were some one else than a Indian tribe that was suing.”

    Do not the People reserve the right “to petition the Government for a redress of grievances”? That right extends to all citizens through all branches of government, including the courts. There are no limitations on the nature of the grievances (although they tried to when the legislature was inundated with anti-slavery petitions in the 1800’s)

    It seems to me that the 14th Amendment extended the right of citizens for a redress of grievances to the states as well.

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