483 U. S. 468
June 25, 1987
Jean Welch, while working for the State of Texas, was injured on a ferry dock. She tried to sue Texas in admiralty law under a federal tort claim statute called the Jones Act. Texas protested that being sued violated the state’s sovereign immunity under the Eleventh Amendment. The Supreme Court had decided a century ago in Hans that sovereign immunity could protect a state from being sued by its own citizen, and more recent decisions had suggested that Congress could not create a statutory right to sue a state unless the law provided this expressly. The Jones Act had no such express provision.
The Court ruled against Welch 5-4, with Powell writing. After backing Texas for the reasons just stated, he turned to the dissent’s arguments that the Eleventh Amendment was misinterpreted, and that Hans was wrongly decided. Powell said that, at worst, the historical evidence of sovereign immunity’s original scope was ambiguous, and stare decisis foreclosed the possibility of overruling Hans on the basis of some inconclusive historical arguments. In response to the dissent’s claim that suing in admiralty was outside of the Amendment’s purview, Powell again showed that the history did not unequivocally support such a reading. The majority stressed that Welch could still sue state officials, and that sovereign immunity served crucial federalism concerns.
White’s concurrence emphasized that the Jones Act did indeed give Welch some alternate relief. Scalia concurred in judgment. He creatively argued that even if the dissent was right about Hans, Congress had passed the Jones Act on the assumption that Hans was correct, and thus, the law couldn’t possibly abrogate sovereign immunity. Brennan’s dissent, joined by Marshall, Blackmun, and Stevens, first said that admiralty was never part of state sovereign immunity. Lots of early case law backed him up, or so he claimed. Next, Brennan said that the Eleventh Amendment, by its literal text, only protected states against suits from non-citizens of that state. Again, history was his great sword of argumentation. Out of his grab bag, Brennan also pulled the claims that the Eleventh Amendment only applied to cases in diversity, and that the majority improperly discounted a recent Warren Court precedent.
This is one of those fun cases where everyone on the Court – left, right, and center – suddenly becomes a dyed-in-the-wool originalist. I don’t really know who’s history is better, and given the ambiguity I have to side with Powell due to the stare decisis concerns. I particularly liked Scalia’s elegant argument. All this in spite of the fact that I personally disagree with the concept of sovereign immunity. The Eleventh Amendment is one the USA could do without. No one, not even a state, should be above the law, and above accountability.