Article

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.

That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.

Corporations, Unions, and the Illusion of Symmetry

Prominent corporate and labor law scholars claim that corporations and unions should be treated symmetrically when it comes to spending money on ideological activities. Citizens United v. FEC recognized this symmetry in one respect, by holding that both corporations and unions can spend unlimited amounts of money on politics. But Citizens United ignored the fact that dissenting employees have a right to avoid paying for union spending with which they disagree, while dissenting shareholders have no such right. Sensing that the Supreme Court might expand union dissenters’ rights in Friedrichs v. California Teachers Ass’n, these scholars intensified their calls for legal reform to bring the disparate treatment of corporations and unions into line.

This Article argues against the idea of moving towards greater union-corporate symmetry. The strength of arguments for symmetry depends on accurately identifying the principle underlying dissenters’ rights. On this score, existing accounts propose several candidates—from the idea that it is illegitimate to use power in the economic sphere to achieve goals in the political sphere, to the view that dissenters should not suffer misattribution of ideological beliefs, to claims about the corruption that comes from using other people’s money for political speech. But none of these principles hold up to scrutiny.

In their place, this Article argues—on both doctrinal and normative grounds—that dissenters’ rights are best seen as grounded in concerns for individual freedom of conscience. It then shows how the freedom-of-conscience principle undermines the case for union-corporate symmetry. The structure of modern corporations—and in particular the nature of modern capital markets—severs the link between shareholders’ wallets and their consciences. And when compared to the direct connection between dissenting employees and unions, threats to shareholder conscience are remote. Recognizing this fundamental difference between corporations and unions provides reason to be skeptical of various arguments for legal reform based on appeals to symmetry and clears the way for more persuasive claims to take their place.

The Amicus Machine

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. The result is orchestrated and intentional—the product of what we call “the amicus machine.”

This Article has two goals: The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court Bar generally. While acknowledging these risks, we argue that—when it comes to amicus briefs—the benefits of specialization outweigh the costs.

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