The Alden Trilogy: Praise and Protest
Hartley, Roger C., Harvard Journal of Law & Public Policy
The 1998 Supreme Court Term was relatively unremarkable(1) until a final day blitz in which the Court announced the Alden Trilogy, named for Alden v. Maine,(2) the lead case in a trio of federalism cases. Decided by identical 5-4 votes, these cases immunize state governments from citizen damage suits alleging a violation of federal rights. Alden v. Maine shields states from such private damage actions brought in state court.(3) Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (College Savings Bank I), provides states immunity from patent infringement suits brought in federal court.(4) Similarly, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (College Savings Bank II) insulates states from private damage actions brought in federal court alleging unfair competition under the federal trademark law.(5)
This "Tuesday Trilogy"(6) declared portions of three federal statutes unconstitutional,(7) overturned one thirty-five-year-old decision of the Court,(8) reversed the outcome in another,(9) and precipitated a forty-five-minute "scene of extraordinary drama"(10) at the Court the morning the cases were announced from the bench. Each Justice who wrote a majority opinion read excerpts from it, as did the authors of the various dissenting opinions. Several Justices digressed from text during their oral presentations.(11) As one account put it, the exchange was "[n]ot exactly a street brawl episode of `The Jerry Springer Show,' but this was about as close to high drama as it gets in the distinguished, white-columned building that most Americans equate with the essence of justice."(12) Another report observed that "[t]he rhetorical volleys ... held the audience of tourists and government lawyers spellbound."(13) The opinions' strident(14) and sometimes sarcastic(15) language revealed a deep division within the Court as the two sides attempted to describe their irreconcilable understanding of the founding generation's intent regarding state sovereign immunity.
The general media appraisal of the Alden Trilogy has emphasized two themes: the interpretive process used by the Court and the political power redistribution the Trilogy achieved. Opponents, primarily, cite process. They lament the absence of textual support in the majority's opinion(16) or criticize the majority's historical understanding.(17) Regarding the Trilogy's redistribution of political power between the federal and state governments, the Trilogy has received strong praise from those who delight in the states' new-found freedom from federal control that these cases seem to provide.(18) Others object to what they perceive as an untoward judicial activism manifested in these cases,(19) particularly what opponents conclude is an arrogant disregard for Congress and the majority rule foundations of our constitutional system.(20)
In this Article, I discuss the Trilogy's interpretive process and its redistribution of political power, but do not linger on either. This Article is written in praise of the Alden Trilogy, but praise coupled with protest. I make three essential points. First, the Trilogy deserves praise as a pragmatic masterpiece. Through it, the Court shrewdly avoided a constitutional quagmire that easily could have created a federalism crisis.
Second, I argue that the Alden Trilogy is an exemplar of misdirection. Here I render reluctant praise, like that given to an opposing baseball team's dramatic double-play. Though one dislikes the outcome, one cannot deny the skill just witnessed. In this regard, I show that through its deft deployment of state sovereign immunity doctrine, the Supreme Court has enhanced its own power as well as that of the federal Executive Branch -- to the detriment of Congress's lawmaking power. Moreover, although the Trilogy focuses on Congress's remedial authority, it thwarts Congress's substantive lawmaking capacity. …