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Summary Judgment and Sovereign Immunity: A Conversation with Andrew Tutt

Mr. Tutt is a Senior Associate at Arnold & Porter focusing on Supreme Court, appellate, and complex litigation.

All errors are my own. Edited and condensed for clarity.


Mr. Tutt is a graduate of Duke University and Yale Law School, and is now a senior associate at Arnold and Porter in Washington, D.C. He has won cases in federal courts across a broad cross-section of subjects, with particular experience in administrative law, intellectual property law, and civil rights law. Over the past 2 years, he has argued 3 significant and influential cases before the U.S. Supreme Court. We will be taking a look at 2 of those cases today. Mr. Tutt, thank you very much for joining us today, and for offering your time.


Maclain Conlin: Before we get into the substance of these two cases, many of our readers here at OA are high-school students who are interested in pursuing a career in appellate law. So why, out of all the potential areas of law, did you pursue that specific career, out of curiosity?


AT: Sure thing. Appeals are an opportunity to make law for lots of cases, as opposed to just one case. They give you the chance to stand up and make an argument in court, which is always something that I enjoy. Appellate law also involves, to some degree, writing, and if you are somebody who likes language and the prospect of making a compelling argument in writing, you can’t beat appellate law. So, those are my reasons!


OA: Well, those are great reasons! Many of our readers enjoy writing as well, so that makes perfect sense. Thank you, sir. To start off, the two cases are Torres v. Texas Department of Public Safety and Dupree v. Younger. Let’s start with the second case. In that case, the legal question the Court agreed to decide, before we get into the specific facts, was, “Whether to preserve the issue for appellate review a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment.” Let’s unpack that for a moment. First of all, what is a motion for summary judgment? Why do lawyers make them, and why do they matter?


AT: Motions for summary judgment are part of the procedures (called rules of civil procedure) by which cases are heard in federal court. These motions are designed to weed out cases that, for whatever reason, are not meritorious or warrant going to a trial. Trials are very costly. Trials involve forcing people to come and serve as jurors who have other jobs and things that they want or need to be doing. Understanding that trials are very costly, the courts prize only allowing cases that have a genuine fact dispute (the role of a jury is to decide who is telling the truth) to go in front of a jury. If everyone agrees on the facts, the role of the judge is to decide issues of law. 


So what is a summary judgment motion? In a summary judgment motion, one of the parties says, “Actually, all of the relevant facts in this case are not disputed, and so the court can just decide this case as a matter of law.” The most common reason for why such a motion would be denied is that the other party comes forward and says that the party which made the motion is actually wrong.


There really is a disputed issue of fact, all the witnesses do not agree on what happened, the security camera footage is not accurate, or whatever else. There is some factual dispute. If the party opposing the motion can show that there is such a dispute, then you will need a jury to resolve it to decide the case. But there’s another way to lose such a motion, which is that the opposing party comes in and says, “I don’t dispute that there is no dispute about the facts, but you have made a legally erroneous argument in your motion for summary judgment. You actually can’t win the case even if you’re right about all those undisputed facts.” For example, a party makes a motion and says that the other party has missed the limitations deadline, the deadline to bring their lawsuit, so it’s too late. The other party comes back and says, “I don’t disagree about the date that you filed the lawsuit on. But I do disagree with you about what the law says regarding when it was supposed to be filed.” If the judge rules on that issue, and says, “Actually, the party that made the motion is wrong, so we are going to take this case to trial because they don’t just win outright,” that’s what the Dupree v. Younger case was about. If there was no dispute about the facts in that motion, and all the parties argued about was a matter of pure law, what some courts had held was that you still need to make a new motion after the jury trial, about that legal question, again. And if you didn’t make another motion at the end of the trial, you waived your right to take an appeal on the issue, even though it wouldn’t have been an issue at the trial.


OA: I was just wondering about that, sir. You mentioned that motions for summary judgment are made for the purpose of avoiding a trial. Why would an attorney ever make a motion for summary judgment after a trial is over? Are there cases where that does occur?


AT: Yes. What happens at the end of a jury trial is that parties will often want to preserve issues for review, and there is a doctrine that if a jury decides a case completely contrary to the evidence, you are entitled to win the case even though the jury ruled against you. But to do that, you need to make a motion before the case goes to a jury, but after all the facts are in, which says that, “There isn’t enough evidence in this case for the case to be decided in favor of the other party.” That’s called a motion for a judgment as a matter of law. It’s different from a summary judgment motion. A summary judgment motion says, “I don’t think any of us dispute what the facts are, and under the undisputed facts, I win.” But this motion, called a JMOL motion, or a judgment as a matter of law motion, can say that, but it can also say, for instance, “We’ve now tried this case, and they promised they were going to put on a witness who was going to say that he saw me do it, and they didn’t produce that witness, so there is no evidence that I was there night,” or something like that. And so you have to make a motion at the close of all evidence that says there is no evidence in this case that any jury could use for the other party, so I need to just win. The judge will deny that motion almost always in a federal court, and they do that because they want to give the jury an opportunity to get the question right. You can avoid a lot of trouble if the jury just gets the answer correct. So they will submit the case to the jury, but they write down, essentially, a secret answer that they would give if they were to rule on the motion. The case then goes to the jury. Now, let’s say that the jury returns the wrong answer, and they find for the other party, even though it is against the weight of the evidence. A party then has to renew the motion that they made before the case went before the jury. You don’t make a new JMOL motion, you make a renewed JMOL motion, where you basically ask the judge to reveal what they wrote down on their secret card. You have to make that motion if you want to take an appeal of that issue, because an appellate court can also reverse a jury verdict as against the weight of the evidence, but only if you make that second JMOL motion.

Why is this elaborate procedure required? Well, it’s required because the Seventh Amendment to the U.S. Constitution requires it. At the time of the Founding, there was a real concern with judges taking cases away from juries and abusing their power. Judges have a lot of power in a trial, and the only check on a judge is the jury. So the Seventh Amendment was put in the Constitution, and it says that no factual finding by a jury can be set aside by a judge. Imagine you only made that JMOL motion after the jury verdict. A good case could be made that you’re asking the judge to reexamine what the jury did. But if you make the JMOL motion before it goes to the jury, then it goes to the jury and you renew the motion, by operation of basically a legal fiction, you’re not actually reexamining what the jury did. You’re just reexamining what the judge already ruled before it went to the jury. So no one has taken the jury’s role away from it.


OA: Is that why there is a substantive difference between a summary judgment holding on a factual issue and a legal issue? Because a factual issue would implicate the Seventh Amendment? Is that the crux here?


AT: Yes. Justice Barrett said that in her opinion of the Court that when a legal issue is involved, there is no Seventh Amendment barrier. But that motion sequence at the end of trials is created by the Seventh Amendment. You are allowed to bring a purely legal claim, a claim like you would bring at summary judgment. You could say, “This case has now been tried. Based on the undisputed evidence that has come in, I should just win.” It can look like a summary judgment motion, and because it can look like a summary judgment motion, some courts had held that you just have to do it because it makes it easier for the appellate court to figure out what your argument is on appeal. So it was a more convenient way to do appellate review because everything that a person would want to appeal would have to be in their JMOL motion. But what’s convenient and what is the law are sometimes different. That was the case here. Just because it makes it easier to do the appeal doesn’t mean that it’s required. The Supreme Court ultimately held that.


OA: What do you think would have been the consequences if the Court had ruled in favor of Younger in this case?

AT: Like all appellate cases, there were a lot of different ways to rule for both sides. If they had ruled for Younger and just said, “We think it’s more convenient so we’re going to make people do it,” it would have had very little in the way of bad consequences, in my opinion. But the other side made a more profound argument about how appeals work, and about lower court proceedings. They had a much broader and more consequential argument. If they had won on their theory of the case, as we call it, and a theory of the case is the reasons you give for why you should win, we said it would revolutionize civil procedure in our briefs, and I think that’s right. It’s always interesting to think about what the law would be like if this case or that case had come out differently. Thankfully, it didn’t, so we don’t have to worry about that, but yes, if they had won on their theory of the case, it would have changed how lawyers across the country do their jobs, at least in federal court.


OA: Thank you, sir. I appreciate that. Before we move to the next case, I would like to ask a couple of clarifying questions for our readers, in case they haven’t read through the opinion yet. So you were the counsel for Mr. Dupree, and if you wouldn’t mind giving us a brief overview of the facts at issue in this case before it was appealed, so that our readers know what was going on, and what the Court was looking at when it decided this case?


AT: Sure. Lieutenant Dupree was a prison official at a state prison in Maryland. A prisoner, Mr. Kevin Younger, was subjected to an attack by three prison guards. It was a brutal attack, and Mr. Younger was injured pretty badly. Mr. Younger brought a lawsuit alleging that his civil rights were violated under Section 1983, a federal law which allows these suits. As one can imagine, it violates the prohibition on cruel and unusual punishment or, at the very least, a person’s right to not be unlawfully seized, or a person’s rights under the Due Process Clause. Mr. Younger was a pre-trial detainee, so it’s not exactly clear what provision of the Constitution applied, but the Bill of Rights definitely protects a person against being attacked by prison guards. Mr. Younger sued not just the officers who attacked him, who were also criminally prosecuted for what they had done, but Mr. Younger also sued the leadership of the prison, all the way up to the Warden, and Mr. Younger also sued Lieutenant Dupree. Lieutenant Dupree was an intelligence lieutenant who worked at the prison, but otherwise, our view was that Lieutenant Dupree really didn’t have anything else to do with this case. Mr. Younger sued everybody, which is what you do, for various reasons. 


Both parties did discovery, each collected their evidence, and then when everyone knew what body of evidence would be available in this case, and the two sides knew about each other’s respective cases, Lieutenant Dupree moved for summary judgment. Lieutenant Dupree moved to win based on the undisputed facts. Before a prisoner is allowed to bring a civil rights lawsuit against a prison official, the prisoner must (and this is because Congress put this in the law, so, it feels arbitrary and strange perhaps, but it just is the law) first file a prison grievance, and the prisoner has to take that grievance through to the end of the process. It’s called exhaustion. The prisoner has to do all the steps in the prison grievance process, I think on the theory that it will limit or reduce the number of lawsuits because if the prisoner has their grievance satisfied by the prison grievance process, then they won’t need to go and take up court resources, which are very precious. There aren’t that many federal judges.


Lieutenant Dupree looked at what Mr. Younger had done and said, “Based on my understanding of Maryland’s prison grievance process, you [Mr. Younger] didn’t take all the steps. You [Mr. Younger] sort of started it [the process], but you never finished it, and so you [Mr. Younger] aren’t allowed to sue me [Lieutenant Dupree], because you [Mr. Younger] didn’t see it through to the end.” No one disagrees in this case about what Mr. Younger did. The only dispute is about whether what Mr. Younger did legally constitutes finishing the grievance process—the process a prisoner must first complete before they can bring a civil rights suit against the prison-- or not. That’s what we regard as a pure question of law. The two sides agreed that Mr. Younger didn’t actually go to the end of the grievance process (he didn’t complete all the steps). But, Mr. Younger asserted in response [to Lieutenant Dupree’s motion for summary judgement argument] that he [Mr. Younger] didn’t have to complete all of the steps in the grievance process because, under the rules of the grievance process, the grievance process is actually completed if, before the prisoner completes all the steps, something else happens.  What that something else is is an internal investigation at the prison, which is what occurred under the facts of this case. The rules state that when a prison undertakes an internal investigation about the matter that is the subject of the prisoner’s grievance, the prisoner’s obligation to complete the rest (the remaining steps) of the grievance process is over. The prisoner doesn’t have to go any further. And when Mr. Younger presented this argument to the district court judge in our case, the judge agreed. So, Mr. Younger won, and Lieutenant Dupree’s motion for summary judgment was denied. Mr.  Younger’s suit against Lieutenant Dupree proceeded to a trial, and a jury found, based on the evidence, that Lieutenant Dupree was responsible, jointly with other prison officials, for Mr. Younger’s injuries and the violation of his civil rights. 


Then, Lieutenant Dupree wanted to take an appeal. But he said, “I want to appeal the decision the district court judge made at summary judgment. I don’t think, as a matter of law, that what Mr. Younger did, the steps he completed, constitutes completing the grievance process.” 


In response to Lieutenant Dupree’s claim, Mr. Younger made an argument about how the rules of civil procedure (specifically those that dictate whether and how a party can make an appeal) work.  Mr. Younger argued that, under the procedural rules of the Fourth Circuit (which is where Lieutenant Dupree appealed the case), a party to a case is not allowed to take an appeal on a legal issue unless that party, at the district (or lower) court trial, re-argued the same legal issue (in this case, what constitutes completing the prison grievance process) in a motion for judgment as a matter of law at the trial. 


Of course, Lieutenant Dupree responded that there was no reason for him to bring up the legal issue of whether Mr. Younger’s actions constituted a completed grievance process as a matter of law at trial, because the judge had already decided this issue.  Neither party disagreed about the facts surrounding the legal issue—exactly which steps Mr. Younger had taken in the grievance process—so the jury didn’t have anything to decide. Why then would Lieutenant Dupree bring up this same already decided legal issue at trial?  Doing so would have just wasted everyone’s time. Remember, motions for summary judgement happen before a case goes before a jury, so Lieutenant Dupree would have had to bring up this legal issue again right after the district court judge had just decided it.  So, the district court judge probably would have denied Lieutenant Dupree’s attempt to re-raise this legal issue as a matter of course.  And, the district court judge would have probably asked Lieutenant Dupree’s lawyer, ‘Why are you even saying this?’ 


So, Mr. Younger’s argument about how the Fourth Circuit’s procedural rules work doesn’t make any sense. And, in fact, the vast majority of federal courts had come to the opposite conclusion about how these types of rules work, and have said that a party can appeal a legal issue that was decided at summary judgement, even though the party did not again raise that legal issue at trial. 


That other courts in different parts of the United States have interpreted the rules of civil procedure differently from the Fourth Circuit is important because it creates a conflict in federal law. If Lieutenant Dupree had been a prison official at a prison in California, or anywhere else in the United States other than the Fourth Circuit, he would have been able to have his appeal heard on the merits.  But because he took his appeal in Maryland, which is in the Fourth Circuit, he was not able to have his appeal heard on the merits. When different litigants are being treated differently based on geography (because different courts interpret federal law, which is federal (national) law, differently), the U.S. Supreme Court feels that it is most imperative to get involved, because that kind of disunity in federal law is not consistent with what it means to be governed by a uniform body of laws.


So, we asked the Supreme Court to get involved, and they granted the case. And they ultimately ruled 9-0 that you can take appeals directly from purely legal issues resolved at summary judgment, agreeing with our position.


OA: I appreciate it, sir, and personally, just for me, I love reading through the cases that haven’t received quite as much media attention, because once the media gets involved, they can make everything into a political issue as opposed to focusing on the actual text of the law at issue. I really enjoyed reading through this case, including the oral argument transcript, the briefs for both sides, and some of the amicus briefs. When Justice Barrett was reading aloud her summary of this case, I saw on SCOTUSblog that she started out by saying that if you aren’t a lawyer, you might want to leave the room because this won’t be very relevant to you. Would you agree with that characterization?


AT: I would. It’s absolutely right. That doesn’t mean it’s not important, but it does mean that, as a fact, some cases the Court decides are followed by everyone because they can immediately understand them. The ones that are the easiest to understand get the most attention. I’ve taken cases to the Supreme Court-not just the Torres case, but the Talevski case-that affect tens of millions of people, but if the legal issue is just a little too complicated, it’s very hard for people to really understand what’s at stake.

This is actually one of the most consequential decisions that I think they’ve made, because it affects every civil trial in the United States, but it’s a little abstract. It’s not directly affecting people’s pocketbooks or civil rights in the same way.


OA: Thank you, sir. I found this case very interesting, and I am sure many of our readers will as well, especially those who want to go into civil litigation. This will be very important for them. I’d like to move on to the second case I mentioned at the beginning of our interview today, which is Torres v. Texas Department of Public Safety. The official question in that case was, “Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.” First of all, this was a sovereign immunity case, so could you please give us a brief overview of what sovereign immunity is, how it is different at the federal and state level, and why it exists in the first place?


AT: Well, we all have our theories about why it [sovereign immunity] exists, but I will give some of the best explanations. Sovereign immunity is this principle that you can’t sue the government. If there is a general cause of action (for example, negligence, where someone, through acting negligently, causes you harm) you can sue everyone in the world, but if the government does it, you can’t sue them [the government]. In general, going back a very, very long time, all the way to England in at least the 1500s (actually going back much farther, but I will pick 1500 as a nice round number!) you could not sue the King. The statement for why was that the King could do no wrong. Now, what was strange about England and what makes this like all other legal doctrines, where it evolves over time, was that the King always let you sue him. So even though the King could do no wrong, he would always waive his immunity. Everyone just wanted to make sure that it was clear that when he did so, it was an act of grace. You are suing me, and even though I don’t have to let you sue me, I will do so, because I am acting with grace and dignity and I will acknowledge that you have a grievance and allow you to bring it. If you come to the American Colonies, they also had this doctrine and knew about it. Blackstone, who was the leading scholar of law, had talked specifically about sovereign immunity in his writings. But they had a different problem, which was how you are going to pay judgments. Every time someone sues the government, the government has to raise taxes to pay the person that sued them. It’s quite burdensome and difficult to have that sort of unpredictable liability. Colonial governments already had enough creditors. Suddenly having tort creditors in addition was a lot.


So sovereign immunity made its way as a principle that was originally about the King and his regal, almost quasi-divinity, but it came to the Colonies as a much more practical doctrine. Different people have different views, but I think this is the most well-accepted view of how sovereign immunity developed. When you are living in a democracy where governments have to tax citizens, what should the presumption be? Should the presumption be that the government is exempt from suit unless it wants to be sued? And the answer was yes—so that’s how we got sovereign immunity. It was really important when the states entered the federal system that their sovereignty be intact, and what I mean by that is, imagine you’re a state with unpredictable liability, and then you (the state) have this problem of a federal Congress down in Philadelphia, eventually going to be in Washington, D.C, or wherever that’s going to be.  What if that Congress (or the federal government broadly)  could impose tort liability on us states (by passing a law), and we can’t do anything about it?  The feds could force us states to pay judgments, which means the feds could force us states to raise taxes. To the states, this sounds like a Rube Goldberg machine, and seems really unfair, because giving the federal government this type of power makes it difficult for these states to retain their sovereignty, or autonomy, and decide their own affairs.

There was a real fight when the Constitution was being adopted about whether or not sovereign immunity would be a bedrock principle of the republic (of the new United States). It turns out that no one came to a consensus about this issue, but the best history we have is from the Virginia ratifying convention. Virginia was crucial to the Constitution. If Virginia didn’t vote the Constitution through, it would fail. At that convention, the Federalists promised that the Federal Government would not have the power to authorize lawsuits against the states without the states’ consent. When that promise was made, the Constitution barely eked through the Virginia convention, and by going through in Virginia, the Constitution was able to go through in New York. That compromise is what got us the Constitution. The future Chief Justice John Marshall unequivocally said that Congress could not pass legislation to authorize lawsuits against the states, and that it would be impossible to do so. If you read the Constitution, the text does not explicitly authorize Congress to pass a law that would let people who wanted to sue states overcome state sovereign immunity.


But after the Constitution is ratified, something happens. At the end of the 18th century, the Supreme Court decides a case (Chisholm v. Georgia) involving an individual that tried to bring a lawsuit against Georgia.  Surprisingly, in that case the Supreme Court held that the Constitution authorized this particular kind of  lawsuit. The Supreme Court said that federal courts (national, not state courts) do have the authority to hear lawsuits against the states, meaning that a state now has to pay creditors if this state is sued and loses. In Chisholm v. Georgia, it was a creditors’ suit. The plaintiff claimed, “The State owes me money.” This type of claim is not even a tort. It’s not even negligence. The states simply borrowed money from an individual and they allegedly hadn’t paid it back. In this case, the Court held in favor of the Federal Government and against the state. 


The Supreme Court’s decision in Chilsholm v. Georgia, which appeared to get rid of sovereign immunity, created such an outcry that Congress actually decided that it needed to pass a constitutional amendment to make sure that the Supreme Court could not interpret the constitution in such a way again. So it passed the Eleventh Amendment. The text of Eleventh Amendment says that federal courts do not have jurisdiction to hear lawsuits between citizens of another state and a state. But the Eleventh Amendment has always been read much more broadly to stand for the principle that the Supreme Court got the original constitutional interpretation wrong, and in fact, the states were never allowed to be sued without the states’ consent. If a state consents, great, then the lawsuit can go forward, but if the state doesn’t consent, then the state’s immunity remains intact, even if Congress passes a law claiming to get rid of a state’s sovereign immunity.  That’s sovereign immunity in a nutshell.


OA: Thank you, sir. That’s what makes this case so interesting, because in Torres the Court held that a state could be sued, so what were the facts of that case? What were the relevant laws here?


AT: I represented Le Roy Torres. Le Roy Torres is an Army reservist and he was a member of the Texas Department of Public Safety, which is like the state police of Texas. He had worked for the Department for a long time, but when you’re in the Army Reserve, you make a commitment to the United States that you will go to war if and when the United States needs you to do so. This aspect of the reserves allows the U.S. to quickly respond to the unpredictable global threats. In the early 2000s, the United States went to war in Iraq, which was when Mr. Torres was activated. He was given a few weeks’ notice, and told to get ready, that he would have to leave his job and go to Iraq. He went to Iraq, and he fought there, and during the war in Iraq, our military generated a lot of waste. All militaries do. It’s very hard to dispose of, and in the military, the conventional method by which you dispose of waste is that you burn it. It costs the U.S. billions of dollars to get troops, equipment, and supplies overseas to generate the waste, and so it would cost billions of dollars to take that waste out, as opposed to simply lighting it on fire. So we used burn pits, massive open-air burn pits that burned 24 hours a day. When Mr. Torres was in Iraq, they burned everything—they burned human waste, they burned military equipment, they burned plastic, etc. Everything that the U.S. military needed to dispose of was burned in burn pits. It turns out that many of those things are enormously toxic, and soldiers in Iraq were breathing in the fumes from these burn pits all the time. I don’t know if the bad air quality from Canada that we experienced on the East Cost recently made it all the way down to North Carolina, but imagine thick black smoke filling the air, orders of magnitude worse than what we’ve had the past few days. That’s what was coming out of these burn pits, and Mr. Torres’ lungs were permanently damaged by the burn pits. So when he returned to Texas to work at the Public Safety Department, he told his employer (the Texas Department of Public Safety) “I can no longer be a trooper who pulls people over on the highway, but I think I can still do my job. I just need some accommodations. I can be an investigator, for instance.” In response, his state employer basically said, “We don’t need an investigator. You can either be a trooper on the highway, or you can not be a trooper, but we’re not going to give you a desk job.” So Mr. Torres was effectively forced out, and he couldn’t keep his job as a state trooper. With it, he lost his pension and other benefits.


So what could he do?  Decades ago, the United States Congress passed a law called ​the Uniformed Services Employment and Reemployment Rights Act (USERRA) that said when U.S. soldiers are injured in military service and come back to their civilian jobs, that their state employer must, as a matter of law, make a reasonable accommodation for any war-related injuries that those veterans have. When Mr. Torres came back from duty to resume his job as a state trooper, Texas didn’t do that. Texas had violated this federal law. But the way you enforce that statute is you sue the employer who refused you the accommodation. So Mr. Torres sued the Department of Public Safety under USERRA.


Congress had thought about all our servicemen and women who work for state governments. It turns out that a disproportionate number of our servicemembers work for states, either in state police forces or in other state agencies, probably because the kind of people who are inclined to serve their country are also inclined to serve their states. As a result, Congress passed USERRA to say that if veteran works for a state employer, the veteran can sue the state employer in state court. So Mr. Torres did as the law provided, and he sued Texas in a Texas court in Corpus Christi. The judge held a hearing and said, “I only have one question: if your sovereign immunity defense works, then Mr. Torres will recover nothing, is that correct?” or something along those lines. Texas said yes, and the judge responded by saying, “Well, then the motion is denied.”


When a state asserts assert sovereign immunity, the state has an automatic and immediate right of appeal if a court denies the assertion, because the right that is embodied in sovereign immunity is the right not to be tried at all. Texas took an immediate appeal, and in a 2-1 decision, the appellate court said that Congress lacked the power to authorize Mr. Torres’s USERRA lawsuit against Texas unless Texas consented. That’s when I saw the case, and we got involved, and we sought review from the Texas Supreme Court. We said that there is an exception to that general rule of sovereign immunity in the Constitution when it comes to war. The Texas Supreme Court declined to review the case, and we asked the U.S. Supreme Court to intervene and correct this error. The U.S. Supreme Court agreed to hear the case by granting a petition for a writ of certiorari. The question in the case was: does the Constitution forbid Congress from passing a law authorizing lawsuits against states even when Congress passing the law by acting pursuant to its constitutional war powers? And the answer was no, that the Constitution does not deprive Congress of that power when it is acting under its constitutional war powers. The case was decided by a 5-4 vote, so a very close case, with a long dissent by Justice Thomas. So ultimately we prevailed. We won that case.


OA: I have a couple of questions there, sir. First of all, just as an initial reaction, in voting rights laws, for example, the Justice Department can enforce these laws against the states and it doesn’t seem like that would implicate a sovereign immunity issue. Could Congress here have, instead of authorizing private suits, allowed the Justice Department to sue states, or would that have also created a sovereign immunity problem?


AT: That’s right. The federal government can sue states, even though private individuals cannot. In the 1890s, a state tried to raise sovereign immunity as a defense to a lawsuit by the Federal Government against the state (United States v. Texas, 143 U. S. 621, 646 (1892)), and the Supreme Court, for whatever reason, said that the Federal Government is not bound by the same sovereign immunity limitations as individuals are, across-the-board. So the Federal Government can sue a state, I suppose, for anything, if they want to, under that case. Yes, if they had wanted to make it a cause of action by the Federal Government, they could have done that.


OA: Thank you. I was wondering about that. You also mentioned that, as a general rule, states are immune from private lawsuits. I have a quote here from Justice Thomas’ dissent in Torres, quoting the Court’s prior holding in Alden v. Maine:


“We hold that the powers delegated to Congress under Article I of the U.S. Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.”


Why did the Court believe there was an exception in this case, and what was your primary argument for that position? Additionally, why do you believe that that was in accordance with the original understanding of the Constitution?


AT: There’s a lot there. I think we can start with precedent, and then we can go to an original understanding. The question of whether there are national powers where the only way that that national power can be affected to the extent that the Framers intended is allowing such suits, has been one that the Court has confronted a number of times in the past couple of decades. Even though in general there is a rule that Congress can’t authorize suits against the states, like many things in the Constitution, this rule may not operate in an all or nothing manner. The Constitution is filled with checks and balances, both structural and legal, which often pose tricky questions when different entities have conflicting interests.  For example, when a state says, “I won’t let a soldier sue me, because I am going to assert sovereign immunity against their suit,” and the Federal Government has said, “I want to let soldiers sue people who refuse to accommodate their war injuries because I need that to be an available remedy so that I can get people to sign up to fight wars,” who wins? The Federal Government has an interest in letting soldiers sue states, because it needs the ability to quickly ramp up a sufficient fighting force, one that is larger than its standing army, in the event of a massive global conflict. To do so, the Federal Government needs the Army Reserves.  People who join the Army Reserves must abruptly leave their jobs to fight and potentially die for their country, and certainly take significant injuries.  If these volunteers were to return home to no job the U.S. government would have a difficult time getting soldiers to volunteer for the Army Reserves in the future. There is a real federal interest here, and it is a federal interest that’s not like regulating how much sulfur puts in their smokestack. It’s about whether we can keep the United States alive as a nation. So when you are talking about interests of that magnitude, does the constitutional calculus change? If sovereign immunity is motivated by ensuring that states aren’t on the hook for big liabilities, and by the ability to have local democratic accountability, those interests are not nearly as important as the federal government’s interest in protecting the United States’ existence. Without America, there are no states.


That was our argument, in a nutshell. If you think of sovereign immunity as an immovable object, in this case, it met an unstoppable force, namely the paramount first task of the Federal Government, which is to ensure the survival of the nation. When those two meet, and they aren’t going to collide very often (perhaps almost never, which might be why this took 200 years to happen at all), that unstoppable force moves the immovable object. That was basically our argument.


Obviously, that can’t be your only argument. We think the text of the Constitution supports that, as well as its structure.

On to originalism, the fight over this is one of the most longstanding and heated in all of American constitutional law, which is strange, because it’s not an issue that keeps people up at night. But judges have split over it for hundreds of years. What was the original deal between the federal government and the states when they first formed our nation? There is no widespread agreement. Justice Scalia himself, in a case called Union Gas, in which he announced the Alden rule in dissent, because he wasn’t able to get to a majority, he said something like, “I admit it’s a close question, but I think the answer is no lawsuits.”


MC: Interesting.


AT: There’s a way in which originalism is fabulous, and obviously the right way to do constitutional law, but it doesn’t mean that you can always have the kind of epistemic certainty that you’d want to have about what kind of deal was made or what the Constitution provides. And you end up with a result as categorical as, “No suits against the states,” but you have to reach that categorical conclusion based on a 51-49 assessment, and someone can look at the exact same evidence and come to the opposite 51-49 conclusion. This is one of those very strange areas where I actually think two originalists could disagree about what the original understanding was. It depends on your views about what political compromises about “the text” mean for the text, what assumptions about the text that aren’t written in the text should mean, etc. For example, there are some originalist judges and justices, and I think they voted for us in the Torres case, who say, “I actually put a premium on text, and as much as I am sympathetic to the idea that everybody assumed there would be sovereign immunity in the Constitution, it’s not in there. It’s not written down.” There might have been some promises that people made, but you have to get it in there if you want it in there.


OA: That was certainly Justice Scalia’s view. It doesn’t really matter what was said in the cloakroom.


AT: Yes and no. He was a big proponent of this doctrine because he says that the Constitution is slightly different, and there are some reasons to believe that the Constitution is different. He had some good points. He called himself a “textualist-originalist” on the Constitution and a “textualist” on statutes. I think the big example is obviously the death penalty. Justice Scalia correctly says that the Fifth Amendment prevents the government from taking away someone’s life without due process, and why would they go through that trouble if you can’t take away someone’s life at all? But on the other hand, the Eighth Amendment does say no to cruel and unusual punishments. Those two provisions are in some tension with each other, if one day it comes to be the case that people think the punishment of death is cruel and unusual. So what do you do as a textualist? Well, Justice Scalia went back and applied originalism, and said that he knew the penalty for every felony at the Founding was death, making it a little easier. He didn’t need the text to solve every problem in this constitutional conundrum. There’s a lot to constitutional interpretation, and it’s a little different from statutes.

OA: I find this really interesting, sir, and it’s true, here you had Justice Kavanaugh and Justice Gorsuch coming to two opposite conclusions, even though both are committed originalists. It’s not as easy as it might seem at first. Additionally, although we only have a minute left, I would like to hear your thoughts on whether this might extend beyond the war powers or do you think that’s so unique that it would only apply in this case?


AT: One thing is that the law gets out of your hands. I don’t make the law at all. I’m just an advocate. My personal belief is that it is limited to the war powers, and that the logic really doesn’t extend any further, but if you ask Akhil Amar, who’s a prominent originalist, he would think that maybe this will finally get us closer to the original understanding, which he believes is no sovereign immunity. Maybe you can have him on this Originalist Angles


OA: That’s a great idea, sir. I’ll make a note of that. Also, thank you again for taking the time to speak with us today. I really appreciate it. We’ve had some very interesting cases to discuss today, and I have really enjoyed it. I am sure our readers will as well!

AT: Thanks for having me!


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