Cite as: 528 U. S. 62 (2000)
Opinion of Thomas, J.
Alden v. Maine, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666 (1999), represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.
Accordingly, I respectfully dissent.
Justice Thomas, with whom Justice Kennedy joins, concurring in part and dissenting in part.
In Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985), this Court, cognizant of the impact of an abrogation of the States' Eleventh Amendment immunity from suit in federal court on "the usual constitutional balance between the States and the Federal Government," reaffirmed that "Congress may abrogate . . . only by making its intention unmistakably clear in the language of the statute." Id., at 242. This rule " 'assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.' " Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989) (quoting United States v. Bass, 404 U. S. 336, 349 (1971)). And it is especially applicable when this Court deals with a statute like the Age Discrimination in Employment Act of 1967 (ADEA), whose substantive mandates extend to "elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy." Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 285 (1973). Because I think that Congress has not made its intention to abrogate "unmistakably clear" in the text of the ADEA, I respectfully dissent from Part III of the Court's opinion.1
1 I concur in Parts I, II, and IV of the Court's opinion because I agree that the purported abrogation of the States' Eleventh Amendment immunity in the ADEA falls outside Congress' § 5 enforcement power.
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