And yep, Nader has set up Bush to add to this nightmare majority, rather than having a chance to reverse it. Read Breyer's dissent and don't tell me there is no difference between Clinton's appointees and Reagan's.
Nathan Newman nathan at newman.org =======================================================
May 28, 2002 Supreme Court Expands Rights of States in Maritime Suit By LINDA GREENHOUSE
ASHINGTON, May 28 - The Supreme Court, its justices as bitterly divided as ever over where to draw the line between federal and state authority, today expanded the concept of state sovereignty to shield states from having to answer private complaints before federal agencies.
The 5-to-4 decision came in the term's most important federalism case, a dispute between the Federal Maritime Commission, which enforces the federal Shipping Act, and the state-owned Port of Charleston, S.C. A cruise line went to the commission to complain that the port had wrongfully denied a berth to one of its ships.
In ruling that the port was constitutionally immune from having to defend itself before the commission, the court significantly enlarged the scope of the 11th Amendment, which grants immunity to states from private lawsuits. The Supreme Court had never before applied the 11th Amendment, which limits "the judicial power of the United States," beyond the courtroom to immunize states from the actions of executive branch agencies.
As have other federalism rulings over the past seven years, this decision revealed a deep disagreement among the justices over the nature and source of governmental authority in the United States.
The court's division was a familiar one. Joining the majority were Chief Justice William H. Rehnquist and Justices Clarence Thomas, Sandra Day O'Connor, Antonin Scalia, and Anthony M. Kennedy. Justices Stephen G. Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed the dissenting opinion.
Writing for the majority, Justice Thomas began his analysis with this statement: "Dual sovereignty is a defining feature of our nation's constitutional blueprint." The states "did not consent to become mere appendages of the federal government" when they joined the union, he said.
Justice Thomas said the fact that the Federal Maritime Commission "does not exercise the judicial power of the United States," and so does not appear as a textual matter to come within the terms of the 11th Amendment, was irrelevant to the deeper question of "whether the sovereign immunity embedded in our constitutional structure and retained by the states when they joined the Union" extended to proceedings before federal agencies.
In holding that it did, Justice Thomas said that "the preeminent purpose of state sovereign immunity is to accord states the dignity that is consistent with their status as sovereign entities." Federal agency proceedings, which are conducted by a special cadre of administrative law judges, share "strong similarities" with federal court proceedings, he said, adding that in any event the Constitution's framers, "who envisioned a limited federal government, could not have anticipated the vast growth of the administrative state."
In a dissenting opinion, Justice Breyer said the majority had adopted a rule that "lacks any firm anchor in the Constitution's text" or in the framers' understanding of the kind of system they were creating. Whether they anticipated the rise of the administrative state, he said, "they did write a Constitution designed to provide a framework for government across the centuries, a framework that is flexible enough to meet modern needs."
Justice Breyer said the decision and the court's other recent federalism rulings "set loose an interpretive principle that restricts far too severely the authority of the federal government to regulate innumerable relationships between state and citizen." He said the majority had rejected the understanding reached during the New Deal era that the Constitution demands "structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions."