VOPA v. Stewart: The Real Conservatism of Justice John Roberts

In today's case about a state agency's right to sue state government, the chief justice channels King Lear in a dramatically right-wing dissent

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When Antonin Scalia and Clarence Thomas are outflanked on the right, it draws attention. Chief Justice John Roberts's dissent in a case announced Monday, Virginia Office for Protection and Advocacy v. Stewart (PDF), gives us a reminder of how conservative the Chief Justice really is.

The issue in this case was, to simplify, the question of when a state agency may sue its own state government on a federal claim in federal court. To Scalia and five other Justices, including Thomas, it was a routine application of a long-standing jurisdictional precedent. Justice Kennedy also concurred but wrote separately to express doubt not about the suit but about the statute itself. Roberts and Justice Samuel Alito, aghast at the perfidy of their colleagues, ended up channeling Shakespeare's King Lear.

John Roberts's opinion suggests a willingness to push the Court's federalism jurisprudence beyond where even the Rehnquist Court was willing to go.

The case arises because a federal program funds state programs for the mentally disabled and the mentally ill. If a state accepts the funds, it must set up an independent watchdog agency to monitor the funded programs. The agency can either be entirely private or be a state agency structured to ensure its independence. Virginia elected to set up a state agency--the plaintiff in this case, known as VOPA.

Four years ago, VOPA asked state officials to provide records about two deaths and one injury at a state-run mental hospital. The state officials said that state medical-privilege laws prevented disclosure; VOPA said federal law trumped the state law. To resolve the dispute, VOPA sued the state officials in federal court.

We now enter the theoretical realm of federal jurisdiction, an angels-on-a-pin cloudland that makes Rudolf Von Jhering's "heaven of legal concepts" look as concrete as Cannery Row. Many lawsuits against state governments are barred by the Eleventh Amendment to the Constitution, which reads, in part, "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

Over the past 150 years, the federal courts have expanded this provision far beyond its language: First they barred federal suits against states by individual citizens of the same state (the Amendment says nothing about those); then they barred federal suits by citizens against states even when Congress has specifically authorized them under its Article I § 8 powers; then they barred Congressionally authorized suits by citizens against states when brought in state court (no question of the federal judicial power); then they barred Congressionally authorized administrative actions by citizens against states in federal administrative agencies (no question of the judicial power at all).

There is, however, an exception to this rule. The Court has held that the Amendment bars only lawsuits seeking to compel the state to spend or pay money. If a plaintiff wants only to require the state to follow the law from now on, he or she may use "the fiction of Ex Parte Young. " That case permits citizens to sue individual state officials for injunctions. It's not a suit against the state, the Court reasoned, using the logic of Hans Christian Andersen's "The Emperor's New Clothes": when an official violates the Constitution or federal law the official magically stops being a state official.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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