The Supreme Court building is now closed to the public and oral arguments have been postponed due to the COVID-19 pandemic, but much of the work of the high court goes on. Last Monday, for example, the Court released opinions in five cases, including Allen v. Cooper—which presented the question whether a videographer could sue the state of North Carolina for damages for copyright infringement. Congress plainly authorized such suits in a 1990 statute; however, the justices unanimously concluded that the statute was an unconstitutional infringement on state sovereign immunity.
The result in Allen is hardly surprising. In the 1998 case of Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court ruled that Congress could not authorize private damages lawsuits against states for patent infringement, and as Justice Elena Kagan’s majority opinion in Allen explained, the copyright and patent statutes are “basically identical.” Accordingly, stare decisis—the obligation of courts to adhere to precedents absent a “special justification”—pretty much commanded the result in Allen.
Or did it? In a companion column, Dean Vikram Amar will explore the intriguing possibility that Justice Kagan’s opinion is in some sense really about abortion. By accepting controversial state sovereign immunity precedents that the Court’s conservative wing set in the 1990s, perhaps the Court’s liberal justices are offering a kind of deal: We will preserve your states’ rights precedents, so you should preserve our abortion rights precedents.
If that is in fact what was occurring in Allen, the deal’s prospects are uncertain. Indeed, Justice Clarence Thomas seemed to erect a pre-emptive defense. In a separate concurrence in the judgment, he reiterated his own radical view that precedents deemed incorrect should be overruled even absent some special justification and even if there has been substantial reliance on those precedents. Whether one or more of Justice Kagan’s other conservative colleagues accepts the olive branch she offered in Allen remains to be seen. We will learn more when the Supreme Court decides the Louisiana admitting privileges case later this Term.
Meanwhile, Allen warrants careful analysis on its own merits. As I explain below, that analysis reveals that the Court’s sovereign immunity doctrine is a mess of its own making.
The Complexity of State Sovereign Immunity Doctrine
The Constitution contains no express provision protecting the states against private lawsuits for damages. True, the Eleventh Amendment—adopted in 1795 in reaction against the Supreme Court’s decision in Chisholm v. Georgia—says the “judicial power of the United States” does not “extend to any suit . . . against one of the United States by Citizens of another State,” but that text, by its terms, appears to allow such suits in state courts and even in federal court when brought by a state’s own citizens.
However, in the 1890 case of Hans v. Louisiana, the Supreme Court construed the Eleventh Amendment as adopting a broad principle of state sovereign immunity that goes well beyond the text’s wording. In the 1990s and since, the Supreme Court’s conservative bloc expanded state sovereign immunity even further.
How do conservatives—supposedly faithful to constitutional text—reconcile that expansion with the Eleventh Amendment’s language? The short answer is they don’t. In the 1999 case of Alden v. Maine, the majority announced that the Tenth Amendment (which says nothing about lawsuits of any sort) is the true constitutional basis for state sovereign immunity.
A tenuous connection to the constitutional text is not the only problem with state sovereign immunity doctrine. It is also maddeningly complex.
For example, states have sovereign immunity, but local governments do not, even though state law creates local governments. Or consider that under a longstanding exception most closely associated with the 1908 case of Ex Parte Young, sovereign immunity does not bar a lawsuit against a state official for injunctive relief rather than damages. That is an important mechanism for enforcing federal law against recalcitrant states, but it leads to difficult line-drawing questions, such as when costly compliance with an injunction takes a case out of the Young exception and back into the core of sovereign immunity.
The Allen case involved the possible application of yet another exception to state sovereign immunity. Congress can “abrogate”—that is, set aside—state sovereign immunity when acting to enforce the Reconstruction Amendments, which the Court has treated as specially limiting the states and thus empowering Congress. However, in the 1996 case of Seminole Tribe of Florida v. Florida, the Court held that (with the lone exception it would later articulate for bankruptcy cases) Congress may not use its Article I powers to abrogate. The Intellectual Property Clause appears in Section 8 of Article I and, therefore, the Court ruled in Florida Prepaid, is not a basis for abrogation for patent infringement. Thus, in Allen, the Court likewise held that the same clause cannot be the basis for abrogating for copyright infringement.
Why isn’t the statutory provision authorizing copyright suits against states an exercise of Congress’s power to enforce the Fourteenth Amendment? After all, copyrights are a form of property, and Section 1 of the Fourteenth Amendment forbids state deprivations of property without due process.
The plaintiffs made just that argument, but the Allen Court rejected it based on the Florida Prepaid precedent. The Florida Prepaid plaintiff contended that a patent is property, so the federal statute authorizing suits against the states for patent infringement is a permissible effort to, in the words of Section 5 of the Fourteenth Amendment, “enforce, by appropriate legislation,” the Due Process Clause.
Not so, the Court ruled in Florida Prepaid, citing the 1997 decision in City of Boerne v. Flores, which held that for a law to be a valid exercise of Congress’s Section 5 power, it must be congruent and proportional to a pattern of constitutional violations. A merely negligent violation of patents or copyrights could violate the underlying statutes but would not rise to the level of a due process violation. Neither would an infringement for which state law provided an adequate remedy. And in both Florida Prepaid and Allen, the Court concluded that Congress did not legislate against a pattern of uncompensated intentional state infringement of intellectual property. There was no congruence and proportionality and thus no valid abrogation.
The Neglected As-Applied Option
The Court’s bottom line might appear to give states carte blanche to infringe intellectual property rights without fear of retrospective damages liability. And for now it does. But at the end of her majority opinion in Allen, Justice Kagan suggested that Congress could respond to the ruling by writing a new and narrower statute that is “tailored” to remedying violations of intellectual property that rise to the level of due process violations rather than a statute of “indiscriminate scope” like the ones at issue in Florida Prepaid and Allen.
But why should Congress have to go back to the drawing board? In most other contexts, when a statute is unconstitutionally overbroad, the Court responds by invalidating it to the extent of the violation but severing and preserving the valid portions and/or applications of the statute. Why was that path foreclosed in Allen? Why did Justice Kagan not even discuss the possibility in her opinion?
The omission is especially curious because in two prior cases—Tennessee v. Lane in 2004 and United States v. Georgia in 2006—the Supreme Court allowed lawsuits that would otherwise be barred by state sovereign immunity where the plaintiffs alleged unconstitutional conduct as applied to them. An amicus brief in Allen specifically invoked these precedents for as-applied treatment, and the plaintiffs’ main brief arguably did too. During the oral argument, the plaintiffs’ lawyer cited Lane and Georgia in response to a question by Justice Kagan. Later in the argument, Justice Samuel Alito asked the lawyer whether he was making an as-applied argument. As I discussed on the new website Oral Argument 2.0, the lawyer’s answer was initially a bit muddled, but he eventually did say clearly that he was relying on Lane and Georgia.
Accordingly, the failure of Justice Kagan’s majority opinion or either of the concurrences in the judgment even to discuss the Lane/Georgia as-applied approach looks like a bad oversight. Perhaps the Court thought the as-applied argument was not preserved in the lower courts. Or perhaps the justices think it remains open to the plaintiffs’ legal team to make the argument on remand. If so, however, the Court ought to have said as much.
Absent any discussion of permitting as-applied abrogation, one is left to speculate about when it is available. Cases like Lane and Georgia permit plaintiffs to proceed as-applied, but other cases—including but not limited to Florida Prepaid and Allen—treat the question whether a statute validly abrogates sovereign immunity as an all-or-nothing proposition. No case has ever explained when as-applied treatment is permissible, and it is doubtful that any sensible principle could justify the pattern of cases in the Supreme Court.
That last observation could also serve as an apt description of the Supreme Court’s body of state sovereign immunity doctrine as a whole. It rests on a highly dubious construction of the constitutional text, serves a largely symbolic interest in the “dignity” of the states, and includes an extremely complex and mutually contradictory set of rules, exceptions, and exceptions to the exceptions. No wonder Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) concurred only in the judgment in Allen, and only because his repeated criticism of the case law “has not carried the day.”
Preserving the existing body of state sovereign immunity doctrine might be necessary to preserve other more valuable doctrines as part of a stare decisis bargain. But there is little to be said for the doctrine on its own merits.