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


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.

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 ยง 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.

That brings us to VOPA. Under the federal statutes that led Virginia to set VOPA up, the agency overseeing the funds has to be able to "pursue administrative, legal, and other remedies on behalf" of the program's beneficiaries. But when VOPA sued, Virginia pleaded the Eleventh Amendment. Before the Supreme Court, its solicitor general, Duncan Getchell, argued that "the dignity interest of a sovereign is impaired if it is pitted against itself in the courts of another sovereign without its consent" (PDF). Scalia--no fan of federal power--quipped in response, "A dignified sovereign should not agree to the deal."

That argument formed the core of Scalia's opinion yesterday. The distinction between a state agency created by the state for a given federal purpose (which could not sue under Virginia's argument), and a private agency created by the state for the same person (which could), seemed to Scalia a question of form without substance. Ex Parte Young does not concern who the plaintiff is. Scalia defended this result in language that is as nationalist as John anything John Marshall ever wrote:

We do not doubt, of course, that there are limits on the Federal Government's power to affect the internal operations of a State. . . . But those limits must be found in some textual provision or structural premise of the Constitution. Additional limits cannot be smuggled in under the Eleventh Amendment by barring a suit in federal court that does not violate the State's sovereign immunity.

In dissent, Roberts argued that suits by a state agency and suits by an independent agency may look and act alike but are very, very different:

[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same--a full stomach and a dead body--it is the means of getting there that attracts notice.

Roberts can't point to any practical difference. Instead, he pictures poor Virginia, turned out of home onto the blasted heath, betrayed by its own child, killed and eaten by one it nurtured in its bosom, its grey hairs brought down in sorrow to the grave. How sharper than a serpent's tooth! If you have tears, prepare to shed them now!

In an opinion just last month, Roberts ridiculed the claims of ATT to "personal privacy" (PDF). Yet here he is, oozing empathy for a state--no less an artificial construct than a corporation--because its dignity is sullied. Virginia wouldn't feel so hurt if the agency suing it had a different name.

This opinion suggests a willingness to push the Court's federalism jurisprudence beyond where even the Rehnquist Court was willing to go. Given Roberts's youth, intelligence, determination, and strategic sense, this suggests that federal power--whether extended on behalf of civil rights, worker protection, the environment, or (to pick an area randomly) health care--may face a very dangerous enemy.

Image credit: Reuters/Jonathan Ernst

We want to hear what you think about this article. Submit a letter to the editor or write to