In The

Supreme Court of the United States




Decided December 16, 1991

Justice O’Connor, Dissenting

Topic: Economic Activity*Court vote: 6–2
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Joining O'Connor opinion: Justice SCALIA Justice SCALIA
Citation: 502 U.S. 197 Docket: 90–848Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, dissenting.

The Court's decision in this case is an example of the truism that hard cases make bad law. The Court's understandable reluctance to leave petitioner without a remedy leads it to contort and confuse the clear statement doctrine we have articulated in recent opinions. For this reason, I respectfully dissent.


The Court invokes stare decisis while at the same time running headlong away from it. In my view, this case is cleanly resolved by applying two recent precedents, Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), and Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987), not by rehabilitating a decision we have largely repudiated, Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964). In Will, we held that if Congress intends to upset the "'usual constitutional balance between the States and the Federal Government,'" it must make its intention to do so unmistakably clear. Will, supra, at 65 (quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)). As we determined in that case, a federal statute requiring the States to entertain damages suits against themselves in state courts is precisely the kind of legislation that requires a clear statement, because of the long-established principle that a State cannot normally be sued in its own courts without its consent. Will, supra, at 67.

In Welch, we held that the language of the Jones Act, which applied the Federal Employers' Liability Act's (FELA's) remedial provisions to seamen, did not amount to a clear statement of Congress' intent to abrogate the States' Eleventh Amendment sovereign immunity. 483 U. S., at 474-476. In so holding, we expressly stated that "to the extent that Parden v. Terminal Railway... is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled." Id., at 478.

The result in this case should follow a fortiori from the reasoning of Will and Welch. We have already decided that a clear statement is necessary before a State may be required to entertain damages suits against itself in its own courts, and we have already decided that FELA's language does not amount to a clear statement of Congress' intent to abrogate state sovereign immunity. Stare decisis dictates that we follow the rules we have laid down in Will and Welch, not that we revive a substantially discredited case that litigants and lower courts had every reason to think defunct.


The Court tries to drive a wedge between Will and Welch by characterizing the former as a statutory interpretation case and the latter as a constitutional case. The clear statement rule, the Court says, was required in Welch because the Eleventh Amendment was implicated. In Will, by contrast, use of the clear statement rule was somewhat discretionary, because the issue in that case was a question of statutory interpretation in which the Constitution was not implicated. See ante, at 205-207. Because this case involves state sovereign immunity in state court, not federal court, and the Eleventh Amendment does not by its terms apply, the Court holds that the clear statement rule in this "nonconstitutional" context can be trumped by stare decisis.

The Court's distinction is untenable. The clear statement rule is not a mere canon of statutory interpretation. Instead, it derives from the Constitution itself. The rule protects the balance of power between the States and the Federal Government struck by the Constitution. Although the Eleventh Amendment spells out one aspect of that balance of power, the principle of federalism underlying the Amendment pervades the constitutional structure: The Constitution gives Congress only limited power to govern the Nation; the States retain power to govern locally. See Dellmuth v. Muth, 491 U. S. 223, 227 (1989) ("[A]brogation of sovereign immunity upsets 'the fundamental constitutional balance between the Federal Government and the States,'... placing a considerable strain on '[t]he principles of federalism that inform Eleventh Amendment''') (quoting Atascadero State Hospital v. Scanlon, supra, at 238, and Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 100 (1984)). Recognizing this basic truth about our governmental structure under the Constitution, we have been wary of extending the effect of congressional enactments into areas traditionally governed by the States, unless Congress has directed us to do so by an unmistakably clear statement. Indeed, in the cases in which we have employed the clear statement rule outside the Eleventh Amendment context, we have recognized the rule's constitutional dimensions. Gregory v. Ashcroft, 501 U. S. 452, 461 (1991) ("This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere"); Will, 491 U. S., at 65 ("[I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute''') (quoting Atascadero State Hospital v. Scanlon, supra, at 242); United States v. Bass, 404 U. S. 336, 349 (1971) (clear statement rule "rooted in... concepts of American federalism"). Thus, the Court's position that we are not required to employ the clear statement rule in this context ignores the constitutional source of the rule.

The Eleventh Amendment spells out one instance, but not the only one, in which respect and forbearance is due from the national to the state governments, a respect that cements our federation in the Constitution. The clear statement rule assumes that Congress will show that respect by not lightly abridging the powers or sovereignty retained by the States. From this standpoint, it makes little sense to apply the clear statement rule to congressional enactments that make the States liable to damages suits in federal courts, but not to apply the clear statement rule to congressional enactments that make the States liable to damages suits in their own courts. Sovereign immunity, a crucial attribute of separate governments, is infringed in both cases. The suggested dichotomy makes even less sense if we consider the remarkable anomaly that these two canons of statutory construction create: a statutory scheme in which state courts are the exclusive avenue for obtaining recovery under a federal statute. III

The Court gives no guidance to lower courts as to when it will apply the clear statement rule and when it will not. The Court's obscurity on this point does little to further the goals of stability and predictability that assertedly drive its analysis. The Court says only that stare decisis will prevail over the clear statement rule when Congress has manifested its acquiescence in this Court's statutory interpretation by its silence, and when citizens have "acted in reliance on a previous decision." Ante, at 202. Yet we have previously applied the clear statement rule despite the presence of both of these considerations.

Just four years ago, we held that Congress did not manifest its consent to allow States to be sued for FELA damages in federal court, despite congressional silence in the face of our long-established holding in Parden. Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987). Do the intervening four years make it more likely that Congress has silently consented to the remaining encroachment upon state sovereignty Parden sanctioned? How long must Congress remain silent before we declare its constructive consent to our statutory interpretation? The suggestion that this Court can, in some cases, better divine Congress' will to change the balance of power between the Federal Government and the States by listening to congressional silence than to a clear legislative statement substitutes telepathy for statutory interpretation.

In deciding when to ignore the requirements of the clear statement rule, the Court also considers the extent to which citizens have relied on our past decisions. This analysis looks to the reliance of the employees who may be without a remedy if FELA does not apply to their state employers. From the standpoint of the States, however, the Court ignores the fact that we generally do not assume States waive their right to challenge an abrogation of their traditional authority just because they have acquiesced in, or even relied on, longstanding congressional regulation. See Welch, 483 U. S., at 473 (constructive consent to suit not sufficient). The "reliance" exception to the clear statement rule thus reinstates a theory of constructive waiver of sovereign immunity that our cases have repeatedly rejected. See ibid.; Atascadero State Hospital v. Scanlon, 473 U. S., at 241,246247; Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 306 (1990).

In sum, the Court's newly created exception to the clear statement rule threatens to eliminate it altogether, except when the States' Eleventh Amendment sovereign immunity is abrogated in federal court. It will be difficult, if not impossible, for lower courts to know when they should apply the rule in interpreting statutes that upset the traditional balance between the State and Federal Governments outside the context of Eleventh Amendment immunity.


The Court fears that strict application of our precedents will require a clear statement for all congressional regulation of state railroads. Ante, at 203. That fear is not well founded. The clear statement doctrine recently articulated in Gregory and in Will requires a clear statement by Congress before we assume that it intends to alter the usual constitutional balance of power in areas "traditionally regulated by the States." Gregory, 501 U. S., at 460. States have traditionally regulated their liability to damages suits; they have not traditionally regulated interstate railroads. See Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 577 (1886); Transportation Union v. Long Island R. Co., 455 U. S. 678, 687 (1982). The clear statement rule in this context applies to FELA because it provides for a cause of action for damages; it does not apply to other congressional regulation of state railroads.

Nor would application of the clear statement rule here overrule Port Authority Trans-Hudson Corp. v. Feeney, supra. In Feeney, we held that a State could waive its sovereign immunity from suit and consent to a damages action under FELA. Feeney's underlying assumption, of course, was that Congress had intended to include state-owned railroads in the class of appropriate FELA defendants. If States are not within the contemplated category of defendants, then States could not consent to suit, because they cannot "create a cause of action... against an entity whom Congress has not subjected to liability." Howlett v. Rose, 496 U. S. 356, 376 (1990).

Welch did not hold that railroads owned by States were outside FELA's category of "[e]very common carrier by railroad," however. 45 U. S. C. § 51. In fact, Welch never clarified what would count in the context of FELA as a "clear statement" of congressional intent that States submit to damages suits. Because the aspect of state sovereignty at stake here is immunity from damages suits, the clear statement required should be tailored to that concern. See Greg ory v. Ashcroft, 501 U. S. 452 (1991) (when application of federal statute would change state law with respect to tenure of state judges, clear statement rule tailored to question whether Congress intended the statute to apply to state judges, not whether Congress intended the statute to apply to States generally). A "clear statement" in this context, then, should be a statement that "Congress intended to abrogate the States' immunity from suit." Dellmuth v. Muth, 491 U. S., at 231.

Congress clearly wanted "[e]very common carrier by railroad" to be subject to suit under FELA. Railroad owners, then, are clearly within the contemplated category of defendants. Congress, however, did not clearly say whether it intended to force States that happen also to be railroad owners to submit to suit without their consent. Indeed, it is quite doubtful that Congress thought it had the power to create causes of action against the States in 1908 when FELA was enacted. See Welch, supra, at 496 (SCALIA, J., concurring O'CONNOR, J., dissenting

in part and concurring in judgment). Since, in enacting FELA, Congress has not clearly stated that it wishes to abrogate a State's immunity from suit, but has said that it wishes to provide a damages remedy to employees of "[e]very common carrier by railroad," a State is a proper defendant ifit consents to be sued under FELA in its capacity as a railroad owner. But unless a State agrees to be treated as a railroad owner instead of a sovereign, it may not be sued without its consent. As South Carolina has not agreed to throw off its mantle of sovereign immunity, it may not be sued under FELA. I would therefore affirm the judgment of the South Carolina Supreme Court.

The concern that South Carolina Public Railways Commission's employees will be without a remedy should not determine the result in this case. If we clarified our doctrine, instead of obfuscating it, States could allow other compensation schemes to fill the void left by FELA. We should not so quickly assume that South Carolina will callously ignore the fate of its own workers. Certainly, South Carolina has more of a stake in seeing that its employees are compensated than does Congress or this Court.

Instead of avoiding the implications of our previous decisions, I would adhere to them. The Court's holding, while premised on fairness, is unfair to the States, courts, and parties that must parse our doctrine applying the clear statement rule. Therefore, I respectfully dissent.

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