Cite as: 535 U. S. 635 (2002)
Souter, J., concurring
request for prospective relief; they divided four to three, however, over whether that deceptively simple test had been met.
In my view, our Ex parte Young jurisprudence requires careful consideration of the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law. See Coeur d'Alene, supra, at 267-280 (principal opinion of Kennedy, J., joined by Rehnquist, C. J.). I believe this approach, whether stated in express terms or not, is the path followed in Coeur d'Alene as well as in the many cases preceding it. I also believe it necessary. Were it otherwise, the Eleventh Amendment, and not Ex parte Young, would become the legal fiction.
The complaint in this litigation, however, parallels the very suit permitted by Ex parte Young itself. With this brief explanation, I join the opinion of the Court.
Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring.
I join the Court's opinion, Part III of which rests on a ground all of us can agree upon: 1 on the assumption of an Eleventh Amendment 2 bar, relief is available under the doctrine of Ex parte Young, 209 U. S. 123 (1908). Although that assumption apparently has been made from the start of the litigation, I think it is open to some doubt and so write separately to question whether these cases even implicate the Eleventh Amendment.
1 In so doing, I set aside for the moment my continuing conviction that the interpretation of the Eleventh Amendment that a majority of this Court has embraced is fundamentally mistaken. See Alden v. Maine, 527 U. S. 706, 760 (1999) (dissenting opinion); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (dissenting opinion).
2 "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U. S. Const., Amdt. 11.
649
Page: Index Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 NextLast modified: October 4, 2007