The Hotel Lost Liberty??? Gimme A Break
Bye, Bye Roe

Liberal Justices Ignore Stare Decisis

During the Alito and Roberts confirmation hearings, much attention was given to stare decisis.  The Senators, it seemed, worshipped at the alter of stare decisis.  Today the four liberal Justices on the Supreme Court, joined by outgoing Justice O'Connor, ignored clearly established federal law, that is, they did not give appropriate respect to stare decisis, and reached the remarkable conclusion that Congress had power under Article I to abrogate a state's sovereign immunity.  I'll have more on this later.  But it's worth noting that stare decisis, like so many other legal terms of art, are coming to mean one word - abortion.

UPDATE: Kevin Russell analyzes Katz here.  In his analysis, Mr. Russell writes (emphasis added): "[T]he Court has held that Congress lacks the right to abrogate a State's immunity through the exercise of certain of Congress's power enumerated in Article I of the Constitution, including under its power to regulate interstate or Indian commerce and to make patent law. Many read those decisions to more or less categorically rule out any reliance on any of Congress's Article I powers, including its powers under the Bankruptcy Clause []." 

It is, of course, worth noting why many of us (including those, who, like me, think the Court's caselaw in this area is wrong) "read those decisions to ... categorically rule out any reliance on any of Congress's Article I powers."  The Supreme Court, in Seminole Tribe v. Florida, said as much.  Writing for a 5-4 Court, Chief Justice Rehnquist wrote: "The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction."  That seems like a good reason to conclude that Congress lacks Article I power to abrogate.

UPDATE 2:  What is dicta?  Steve Vladeck has an interesting post here; I respond to his claim here.

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