The highlight of the Supreme Court’s just-ended term may well have come on its last day, June 23, when a trio of decisions expanded the boundaries of state sovereign immunity and prompted talk of a constitutional sea change. The cases cap a decade of resurgent federalism, which former Solicitor General Walter Dellinger has described as “one of the three or four major shifts in constitutionalism we’ve seen in two centuries.” While such talk may well be premature, it is now clear that the Court is unabashedly pursuing a federalism agenda.
The three cases-each involving state immunity from federal claims brought by private parties-were decided by identical 5-4 votes. Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas formed the majority in each decision.
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