by Christopher Shortell. Albany, NY: State University of New York Press. 208pp. 2008. Hardcover. $65.00. ISBN: 9780791475072. Paperback. $23.95. ISBN: 9780791475089. direct text format. $20.00. ISBN: 9780791478028.
Reviewed by J. Mitchell Pickerill, Department of Political Science, Washington State University. Email: mitchp [at] wsu.edu.
For many of us who teach courses on the US Constitution and/or constitutional law, the subject of state sovereign immunity and the Eleventh Amendment was probably only barely covered – if at all – when we took the same courses as undergraduates, or even as law students. Yet, a wave of Supreme Court decisions beginning in the mid-1990s brought the issue to the fore for constitutional law scholars. In RIGHTS, REMEDIES, AND THE IMPACT OF STATE SOVEREIGNTY, Christopher Shortell uses the Rehnquist Court’s decisions as a starting point for analyzing state sovereign immunity both as a legal doctrine and as a constitutional principle that reaches “beyond the courts” (see Chapter 1). The book addresses two related questions: first, when are states most likely to be successful in asserting sovereign immunity as a defense against lawsuits, and second, how effective is the assertion of sovereign immunity in bolstering states’ authority? Shortell develops case studies during four distinct historical periods during which states actively asserted state sovereign immunity as a defense against being sued in the federal courts and the court decisions adjudicating those claims.
The book begins with a theoretical overview and a very short review of sovereign immunity doctrine. Shortell theorizes that litigants should be expected to press their claims in extra-judicial venues if they are denied redress by the courts. He hypothesizes that three factors will increase the probability of success for plaintiffs who pursue their claims against states outside the courts: resources, political support for the plaintiffs and political support for the issue. He then posits that when plaintiffs are indeed successful outside the courts, the “risk” to states increases, by which he means “the level of risk that using state sovereignty as a defense will result in a reduction in autonomy and power for the state compared to its status before using sovereign immunity” (p.7). Shortell then briefly traces the origins of sovereign immunity “as a legal concept [that] extends at least as far back as the feudal system,” and he describes how the concept developed from thirteenth century England through the American Revolution, being codified in different forms in the Articles of Confederation, the 1787 Constitution and eventually the Eleventh Amendment (pp.13-14). He also traces the judicial doctrine from CHISHOLM v. GEORGIA (1793) through SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996), and the various Supreme Court decisions in between.
The core of the book focuses on a series of case studies through four distinct historical periods, consisting of analyses [*55] of judicial decisions and Eleventh Amendment jurisprudence and the political and historical context of the decisions. “The Dawn of State Sovereign Immunity,” spanned the period from the revolutionary era beginning in the 1770s, through the years immediately following adoption of the Eleventh Amendment in the late 1790s and early 1800s. The second period, “Debt Repudiation and Backlash in the 1840s” involved a period of heavy state borrowing in the 1830s, largely for transportation infrastructure such as canals, roads and railroads. By the 1840s, nine states in particular faced daunting debts that resulted in defaults on their loans. While the federal courts did not play a significant role in resolving these issues, Shortell shows how the doctrine of sovereign immunity helped to define the political context in which states acted, even encouraging debt repudiation in some instances. The third historical period analyzed in the book covers “Post-Civil War Debts and the Exercise of Immunity.” Again, a number of states found themselves in financial straits, this time as a result of borrowing to rebuild during the Reconstruction era. As in the previous time periods examined here, the doctrine of state sovereign immunity was frequently invoked by states in an effort to avoid paying on their debts. Although the federal courts did weigh in during this period, states’ successes in asserting sovereign immunity appear to have been mixed. The main lesson to be gleaned from these case studies, according to Shortell, is that while states were often able to rely on state sovereign immunity in courts, they did so at their own peril because claimants found nonjudicial methods for asserting their interests, often times to the detriment of states. The case studies illustrate how the states’ assertion of sovereign immunity against creditors, bondholders and the like often resulted in lower prices for state securities, “broader sanctions brought by investors,” and successful political campaigns against the party in power at the time (see e.g., p.112).
In the final part of the book, Shortell considers the state sovereign immunity cases during the “Rehnquist and Roberts” eras and assesses this recent wave of judicial decisions in historical and political contexts. For each of the cases – SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996), COLLEGE SAVING BANK v. FLORIDA PREPAID (1999), FLORIDA PREPAID v. COLLEGE SAVINGS BANK (1999), ALDEN v. MAINE (1999), KIMEL v. FLORIDA BOARD OF REGENTS (2000), and BD. OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT (2001) – Shortell develops the background of the case, an analysis of Court’s holding, the actual consequences of the Court’s decision and the broader policy and political implications of the decision. He also provides a very brief discussion of NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS (2003) and TENNESSEE v. LANE (2004), in which states unsuccessfully asserted sovereign immunity.
While the case studies are informative descriptive accounts of state sovereign immunity over time, Shortell also assesses the actual effects of state sovereign immunity and the likelihood that states will be successful invoking sovereign immunity in the Supreme Court. He concludes that the two factors that are most important for increasing [*56] the chances of a claimant’s success and for presenting risks to states are the claimant’s resources and political support for the issue; he found less support for his hypothesis that political support for the claimant would influence the likelihood of success. According to Shortell, “When the state does not acquiesce to at least some of Plaintiff’s demands, the conflict is likely to continue [outside the courts]. When plaintiffs lack any means of response, this is not serious. When those resources and opportunities are available, however, states are likely to face severe consequences” (p.158). And so for example, when states turned their backs on creditors in the 1840s, there were significant “economic repercussions” for states, resulting in a significant credit crunch and backlash against state legislators that limited those states’ “ability to lead the way in areas such as railroad development” (Ibid.). And thus among the many implications for states today, Shortell warns that states could face similar consequences if they attempt to ignore patent and trademark laws in response to the COLLEGE SAVINGS BANK and FLORIDA PREPAID cases, which would likely provoke a backlash against business groups who would have the resources to challenge states (Ibid.).
Shortell concludes that strict enforcement of state sovereign immunity doctrine by the Supreme Court is more likely to weaken state authority than to strengthen it. And thus, he further concludes “that state sovereign immunity achieves none of the beneficial goals that the Court claims for it,” which is consistent with the findings of Rubin and Feeley (1994) regarding the benefits (or lack thereof) of federalism more generally (p.159). He also suggests in the conclusion to the book that the modern Court has chosen an ill-advised path in enforcing sovereign immunity, and has ignored the “rights of those seeking redress” (p.162).
This book provides an important resource for anyone interested in the history of state sovereign immunity doctrine. The case studies of the doctrine at the time of the Founding, in the 1840s and in the post-civil war era are well researched and presented in a manner that allows for theoretically grounded analysis of states’ assertion of sovereign immunity during these distinct periods. Those who teach constitutional federalism will find this book invaluable for understanding and teaching the history of state sovereign immunity.
Shortell makes a persuasive case (in a somewhat narrow sense, I think) that states may not be truly increasing their power or autonomy by asserting sovereign immunity, because the affected parties may be successful in pushing their cases in other political venues. As much as I recommend the book, there are a number of unanswered questions and additional considerations related to this research, such as the strategic and political goals of (and benefits to) states, the much broader political contexts in which claims of state sovereign immunity seem to proliferate and the proper role of the Supreme Court in policing sovereign immunity. It may be that Shortell is overstating the conclusions to be drawn from his case studies by claiming, in effect, that there are no benefits to assertions of sovereign immunity, and that the Court bears responsibility for denying rights and decreasing [*57] democratic accountability when sovereign immunity is brought to bear. But I think, before such a sweeping conclusion can be solidified, some of these other issues will need to be addressed.
For instance, there seems to be an underlying assumption in the book that the assertion of state sovereignty is necessarily intended to increase state autonomy in some broader sense; but what if states’ simply use it strategically to achieve more narrow and short term goals? All of the nineteenth century cases studied in RIGHTS, REMEDIES AND THE IMPACT OF STATE SOVEREIGNTY revolve around states that faced serious financial issues, and asserted sovereign immunity as one way of alleviating their financial woes; their situations were often times analogous to individuals or businesses who cannot pay their debts and file for bankruptcy. Choosing bankruptcy may have some negative long-term consequences, and certainly it will affect their ability to secure loans, and perhaps even begin new businesses or expand existing businesses in an autonomous manner, but it may be the best short term solution to serious problems. In a number of the cases analyzed in this book, creditors pursued their claims despite the assertion of sovereign immunity, and they ended up negotiating with states and accepting payment on only a portion of the debt owed – much the same as creditors and debtors in bankruptcy actions. The states who asserted state sovereignty the strongest were doing so because they were in the weakest position; it may have been useful to analyze in more depth states who did not assert sovereign immunity during the same time periods as well as a broader range of “benefits” states might have received from asserting sovereign immunity. To be clear, I am not questioning Shortell’s conclusions that there were long-term ramifications for states who repudiated debts entirely; rather, I am questioning what the strategic goals of state actors actually were and suggesting that the efficacy of sovereign immunity should at least in part be measured by the actual (and perhaps more narrow) goals of those asserting it. And, given that the nature of states’ claims of sovereign immunity cases in the late twentieth century seems to be very different from those earlier times that centered round payment of debts, it may well be that states in recent years have quite different goals than did states in the first three historical periods analyzed in this book.
In moving to the recent wave of sovereign immunity decisions by the Supreme Court, Shortell applies the lessons from the nineteenth century cases to these contemporary ones. Much of his analysis regarding the effects of the recent decisions is speculative – that is, he forecasts possible negative consequences similar to those of his historical cases for states who continue to assert sovereign immunity in the twenty-first century. There is a criticism of the modern Court’s enforcement of sovereign immunity that is sometimes implicit and sometimes explicit. For example, Shortell argues on the final page of his book, “In the case of sovereign immunity, the costs are high, while the benefits are marginal. That alone should be sufficient to give the current majority on the Court and their supporters pause” (p.162). And yet, given Shortell’s own findings and the clear political nature of the sovereign immunity issue, I wonder how much [*58] attention, much less criticism, should be given to the Supreme Court. To what extent is the Court really responsible for the state sovereign immunity “problem?”
For example, the Court’s sovereign immunity cases of the past decade or so cannot be isolated from the other federalism cases the Court has handed down limiting federal power under the commerce power, the Tenth Amendment and Section Five of the Fourteenth Amendment. And it is now well documented that the Court’s decisions in these areas were pre-figured to a large extent by national politics, in which federalism, limited government and states’ rights were at the core of a new conservative (and national) agenda (e.g., Pickerill and Clayton 2004). Thus, using Whittington’s (1999) framework, we might conclude that the Court’s constitutional interpretation of federalism was the result of constitutional construction of federalism – and sovereign immunity – by national political actors. This is not a Court that can properly be characterized as leading the sovereign immunity charge, although it has clearly been accommodating of it.
Additionally, even though state sovereignty has been asserted as a political value nationally, the choice to assert sovereignty belongs to the individual state, not to the Court. To be fair, Shortell does indeed recognize states as initiators of the claims and suggests that states should proceed with caution, but I think more could be made of the fact that the Court is enforcing one interpretation of the Eleventh Amendment (one favored by the political regime for the last several decades) only after states choose to raise immunity as a defense. And even then, the Court may find itself a long way down a doctrinal path that limits its choices in a path dependent manner, whether the policy outcome be desirable or not (see e.g., Kersch 2004; see generally, Pierson 2004). But states have to choose strategically and politically whether to avail themselves of it. Perhaps state attorneys general would be wise to heed Shortell’s concerns. Indeed, Bosworth (2006) has shown that some states are in fact voluntarily choosing officially to waive state sovereign immunity. But when states choose to assert the defense at their own peril, it seems odd to place blame on the Court for the fallout, especially when the defense seems consistent with national political regime values. In sum, of all the political institutions and actors advocating for state sovereign immunity, the Court’s role has been the most passive. And thus, the notion that the Court has diminished “accountability” (p.159) or trampled on the “rights of those seeking redress” (p.162) by enforcing state sovereign immunity under the Eleventh Amendment seems a little farfetched to me.
Some of my comments here probably can be considered to go beyond the scope of Shortell’s project. I agree with the key implication he draws from his findings that states would be wise to consider the long term consequences of the sovereign immunity defense before asserting it. However, I simply suggest that in assessing “success” and the proper role of the Court in these cases, we must consider the much broader political landscape that created a hospitable environment for claims of state sovereign immunity, and new federalism more generally, as well as the actual strategic and political goals of the [*59] state actors making those claims. In any event, Shortell’s rich account of sovereign immunity over time provides much food for thought about all of these issues, and I highly recommend students and teachers of constitutional federalism to read this book.
Bosworth, Matthew H. 2006. “‘An Innate Sense of Fairness’: State Reponses to the US Supreme Court’s Sovereign Immunity Decisions.” 36 PUBLIUS 393-420.
Kersch, Kenneth I. 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW. Cambridge: Cambridge University Press.
Pickerill, J. Mitchell and Cornell W. Clayton. 2004. “The Rehnquist Court and the Political Dynamics of Federalism.” 2 PERSPECTIVES ON POLITICS 233-48.
Pierson, Paul. 2004. POLITICS IN TIME: HISTORY, INSTITUTIONS AND SOCIAL ANALYSIS. Princeton, NJ: Princeton University Press.
Rubin, Edward L. and Malcolm Feeley. 1994. “Federalism: Some Notes on a National Neurosis.” 41 UCLA LAW REVIEW 903-952.
Whittington, Keith. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.
ALDEN v. MAINE, 527 U.S. 706 (1999).
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT, 531 U.S. 356 (2001).
CHISHOLM v. GEORGIA, 2 DALL. 419 (1793).
COLLEGE SAVING BANK v. FLORIDA PREPAID, 527 U.S. 666 (1999).
FLORIDA PREPAID v. COLLEGE SAVINGS BANK, 527 U.S. 627 (1999).
KIMEL v. FLORIDA BOARD OF REGENTS, 528 U.S. 62 (2000).
NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS, 538 U.S. 721 (2003).
SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 U.S. 44 (1996).
TENNESSEE v. LANE, 541 U.S. 509 (2004).
© Copyright 2009 by the author, J. Mitchell Pickerill.