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?