122
Souter, J., dissenting
So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.17 Before
judgment that their taxes had in fact been paid. In these cases the Eleventh Amendment faded into the background." J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 9 (1987); see generally id., at 90-109. Second, at the same time that this Court was articulating broad principles of immunity for States, we refused to recognize similar immunity for municipalities and similar state political subdivisions. See, e. g., Lincoln County v. Luning, 133 U. S. 529 (1890). Professor Orth suggests that this seeming inconsistency is traceable to the enforcement difficulties arising from the withdrawal of federal troops from the South. "It just so happened," he points out, "that counties had tended to issue bonds in the West, while in the South, states had usually done the job. Property in the form of bonds could be defended in the mid-West and West, but similar property in the South had to be sacrificed to the higher politics of the Compromise of 1877." Orth, supra, at 111. Finally, Professor Orth attributes this Court's recognition (or revival) of the Ex parte Young, 209 U. S. 123 (1908), action as a way around state sovereign immunity to the fact that, by 1908, "the problem of repudiated Southern bonds was clearly a specter from an increasingly distant past." Orth, supra, at 128. See also Gibbons, supra, at 2002 (arguing that the Court's unanimous revival of its power to grant equitable relief against state officers in Pennoyer v. McConnaughy, 140 U. S. 1 (1891), was made possible by the fact that the case "did not involve Southern State bonds"). I am reluctant, to be sure, to ascribe these legal developments to a single, extralegal cause, and at least one commentator has suggested that the Southern debt crisis may not have been the only factor driving the Court's Eleventh Amendment jurisprudence during this period. See generally Collins, The Conspiracy Theory of the Eleventh Amendment, 88 Colum. L. Rev. 212 (1988) (reviewing Orth). But neither would I ignore the pattern of the cases, which tends to show that the presence or absence of enforcement difficulties significantly influenced the path of the law in this area. See id., at 243 (acknowledging that "[i]t is perfectly conceivable that Compromise-related politics exerted their influence at the margin— in doubtful cases in which the Court might have gone either way").
17 Today's majority condemns my attention to Hans's historical circumstances as "a disservice to the Court's traditional method of adjudication." Ante, at 69. The point, however, is not that historical circumstance may undermine an otherwise defensible decision; on the contrary, it is just because Hans is so utterly indefensible on the merits of its legal analysis
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