The Supreme Court turns on Tuesday to the meaning of a constitutional amendment added 227 years ago, the Eleventh Amendment. Ratified in 1795, it was the first change in the Constitution after the Bill of Rights, and marked the first time that a Supreme Court decision was overturned by a constitutional amendment. It comes up now in a case about the rights of military veterans, but its impact could be far wider constitutionally.
The “live” audio (no video) of the hearing can be found at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
Tuesday’s case: Torres v. Texas Department of Public Safety. Starting at 10 a.m., the hearing is scheduled for 70 minutes.
Background: America has never quite answered finally a question that bedeviled the Founders as they drafted the Constitution at Philadelphia in 1787: did the creation of a new national government end the sovereignty of the states, replacing it with sovereignty placed directly in the people, acting through chosen representatives? From the historic Supreme Court decision in 1793 in the case of Chisholm v. Georgia (the Court’s first major ruling) until this case now before the Justices, state sovereignty claims have been debated constantly – most notoriously, contributing in 1860 to the Civil War.
In the Chisholm decision, a 4-to-1 majority declared that state sovereignty was a constitutional fiction, that it simply did not exist after the Constitution went into effect in 1789. That was a serious blow to the states’ rights sentiment of the Constitution’s Anti-Federalist critics, and Congress quickly came to the states’ rescue.
After the Court issued that ruling on February 18, 1793, it took Congress only one year and two weeks to propose the Eleventh Amendment, drafted explicitly to overturn that decision. And it required only 11 months and three days for states to complete its formal ratification.
The Amendment prohibits any federal court from ruling on a lawsuit against a state, filed without its consent, by a private resident of another state. The Supreme Court has since interpreted it to also bar lawsuits based on federal law but filed in state court, without the state’s consent, by its own residents. (This immunity does not protect a state from being sued by the federal government, and it does not bar Congress from taking away a state’s immunity if that is done under one of Congress’s constitutional powers.)
(The Chisholm decision in 1793, leading to the Eleventh Amendment, involved a lawsuit, filed directly in the Supreme Court, by the estate of a South Carolina man who claimed that the state of Georgia owed him $170,000 for the value of clothing, linens and blankets that were seized in Georgia during the Revolutionary War from a ship that had brought the goods from the West Indies. Georgia unsuccessfully challenged the lawsuit by claiming sovereign immunity – something that the states clearly had before the Constitution was adopted. Although Georgia lost that case, the state legislature later provided some payment to an heir of the owner of the goods.)
In today’s America, an important reason for the deep partisan polarization of the nation is the revival of strong states’ rights sentiment, with legislatures in “red” states deeply engaged in a new culture war and, lately, inserting themselves into the constitutional debate over former President Trump’s claim that the 2020 presidential election was stolen from him.
On Tuesday, the Court gets drawn back into the 18th Century states’ rights controversy that led to the Eleventh Amendment. It comes from a state – Texas — in which most of the governing structure, including the courts, is deeply conservative.
This case arises out of the plight of a military service member, LeRoy Torres. He had been a state trooper in Texas, and had served 18 years as an Army reservist, reaching the rank of second lieutenant. In 2007, he was called to active duty and sent to Iraq.
While serving there, he was exposed to the toxic fumes of the “burn pits,” huge, 24-hour bonfires used to burn everything from ammunition to human waste. He suffered lung damage from that exposure, and was discharged from the Army.
Coming home, he sought to get a job back with the state Public Safety Department. However, he told the agency that his lung damage would prevent him from returning to full duty as a trooper, so he sought another job within the agency. The agency refused, but offered to return him temporarily to a trooper position but said he would be fired if he did not report for duty in that position. He resigned. (Meanwhile, he and his wife founded a non-profit group, Burn Pits 360, to promote benefits for servicemembers injured by the exposure that he had suffered.)
Torres sued the state agency in state court, contending that the failure to offer a job that he could perform violated its duty under a 1994 federal law, the Uniformed Services Employment and Reemployment Rights Act.
The Act seeks to assure returning military veterans that they will get their jobs back. It allows them to sue for any adverse action taken against them on the job, because of their military service. If the veteran had worked for state or local government, the lawsuit can only be pursued in state court.
Reacting to the lawsuit, the state Public Safety Department argued that it had immunity to being sued, under the Eleventh Amendment. The agency contended that Congress has no power, using any of its legislative authority under the Constitution’s Article I, to take away the states’ immunity to any suit against it filed by a state resident.
That challenged succeeded when Torres’s lawsuit was rejected by a state appeals court. It relied upon Supreme Court rulings in 1996, forbidding Congress to end state immunity to lawsuits in federal court, and in 1999, forbidding Congress to do so when the lawsuit was filed in state court by one of its own residents. The state court concluded that those two rulings applied, and that it did not matter that Torres was relying upon the servicemembers’ benefit law that Congress enacted using its Article I war powers.
The two precedents cited by the state court were among a wave of Supreme Court decisions in the 1990s during a revival among the Justices of new support for states’ rights. Those rulings were the judicial echoes of a “New Federalism” campaign promoted by President Ronald Reagan’s Administration, putting new emphasis on state sovereignty.
Torres appealed to the Supreme Court. The Biden Administration, asked by the Court for its views on the case, initially urged against review, saying that few such disputes were arising and that the constitutional law in the field was evolving anew. After the Court agreed to decide the case, the Department joined in the case, fully supporting Torres’s claims.
The question before the Court: Does Congress have authority, under its power to provide for military forces and to wage war, to give returning veterans a right to sue state governments to get back jobs they previously held as state employees, and to be awarded money damages for violating that right?
Significance: It was quite easy, for a middle-level state court in Texas, to sort through the long history of the Eleventh Amendment, with all of the twists and turns by the Supreme Court, to find a couple of precedents that led it to reject the claim of LeRoy Torres. If the Justices granted review only to focus on that one ruling by one court, then the exercise might fall well short of the potential that exists in this case.
But, as legal briefs roll in and enlarge the stakes that the case might potentially involve, the result could be historic. One needs to focus on just one of the new briefs to see how this case might produce a major new constitutional precedent.
That brief was filed for a group of scholars on the Constitution and professors of court procedure and was written principally by one of the most experienced of regular advocates before the Court, Washington attorney Michael R. Dreeben.
The brief boldly suggests that the Court make a “new approach” to its understanding of the Eleventh Amendment and, especially, of the states’ sovereign immunity. Going over the Court’s decisions on the Amendment since the late 19th Century, that filing contends that the Court has strayed from the limited text of the Amendment, creating an “intricate web of doctrine…with its internal tensions and shifting positions.” Although it does not suggest that any prior rulings be overturned, the brief does assert that the Court should find a way not to extend state immunity further and to be more generous toward Congress’s powers.
That brief reads much like a philosophical treatise, or a theme paper for a seminar, and thus may be read by some Justices as pulling the Court well beyond the specifics of Torres’s case, the actual terms of the returning veterans’ law, and the details of congressional powers at stake. There is, after all, a lawsuit to be decided, and canvassing the two-plus centuries of the history of sovereign immunity might be diverting from that task. It also might take on the appearance of an advisory opinion, which the Court has always said it cannot give.
If the Court does use the occasion to do some fundamental rethinking of the doctrine of state immunity, and what that means for understanding the Eleventh Amendment, LeRoy Torres of the 21st Century may take a place in the Court’s annals alongside the 18th Century’s Alexander Chisholm.
On Wednesday, the Court will complete the current round of hearings with another exploration of the law of arbitration, in a case involving workplace complaints by employees of a major cruise line.
