The gang of five & the second coming of an anti-reconstruction supreme court

Notre Dame Law Review

Volumn 75, Issue 3, 2000, Pages 1091-1119

  Nowak, John E ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 23044518601     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (143)

1. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
2. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
3. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
4. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
5. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
6. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
7. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
8. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
9. FRED RODELL, NINE MEN 165-66 (1955). My views, as expressed in this Essay, are similar to the views of two of my favorite legal realists: the late Professor Fred Rodell and the late Judge Jerome Frank. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930). Professor Rodell and Judge Frank held different "realist views" about the nature of judicial rulings. See generally ROBERT J. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW (1985). For an overview of the development of legal realism and a sampling of writings from legal realist scholars, see AMERICAN LEGAL REALISM (William W. Fisher et al. eds., 1993). In other speeches and essays, I have attempted to resurrect Professor Rodell's brand of legal realism in analyzing constitutional issues. See John E. Nowak, Foreword: Evaluating the Work of the New Libertarian Supreme Court, 7 HASTINGS CONST. L.Q. 263 (1980); John E. Nowak, Professor Rodell, the Burger Court, and Public Opinion, 1 CONST. COMMENTARY 107 (1983). Although one would never guess it by the number of footnotes in this Essay, I really hate footnotes. I made that point in John E. Nowak, Woe Unto You, Law Reviews!, 27 ARIZ. L. REV. 317 (1985). I swiped that title from one of my heroes, the late Professor Fred Rodell. Unlike Professor Rodell, I do not have the courage of my convictions, and I will give citations to what I believe are relevant authorities throughout this Essay. The reader need not read any of the notes to evaluate the substantive arguments presented in this Essay. I take some solace in the fact that Judge Abner Mikva, a former student of Professor Rodell, as well as a noted scholar and jurist, has also made some accommodation to the need to use notes to support statements in law reviews today. Because Judge Mikva is a person of more character than myself, he has made less of a departure from Professor Rodell's approach to legal writing than I have. Compare Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (arguing against the importance of footnotes in legal writing), with Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991) (recognizing the usefulness of footnotes only as means of citation).
10. See John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975).
11. For a listing of books and articles on the 11th Amendment, see the footnotes in John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998), Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793 (1998), and James F. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
12. For a listing of books and articles on the 11th Amendment, see the footnotes in John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998), Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793 (1998), and James F. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
13. For a listing of books and articles on the 11th Amendment, see the footnotes in John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998), Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793 (1998), and James F. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
14. Jeffries, supra note 3, at 49.
15. 119 S. Ct. 2240 (1999).
16. 517 U.S. 44 (1996).
17. The two June 23 decisions concerning the Eleventh Amendment are College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999), and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S. Ct. 2199 (1999).
18. 134 U.S. 1 (1890).
19. See Alden, 119 S. Ct. at 2269 (Souter, J., joined by Stevens, Ginsburg, & Breyer, JJ., dissenting).
20. 521 U.S. 507 (1997).
21. See College Sav. Bank, 119 S. Ct. at 2224-26.
22. See Florida Prepaid, 119 S. Ct. at 2205-11.
23. Id. at 2217 (Stevens, J., joined by Souter, Ginsburg, & Breyer, JJ., dissenting).
24. See College Sav. Bank, 119 S. Ct. at 2234 (Stevens, J., dissenting).
25. See id. at 2234 (Breyer, J., joined by Stevens, Souter, & Ginsburg, JJ., dissenting).
26. Everyone knows about the Federalists. If you don't, you should check the footnotes in Nowak, supra note 2. For information about the Anti-Federalists and their opposition to the Constitution, see generally THE ANTIFEDERALISTS (Cecilia M. Kenyon ed., 1966), and THE COMPLETE ANTI-FEDERALIST (Herbert Strong ed., 1981).
27. Everyone knows about the Federalists. If you don't, you should check the footnotes in Nowak, supra note 2. For information about the Anti-Federalists and their opposition to the Constitution, see generally THE ANTIFEDERALISTS (Cecilia M. Kenyon ed., 1966), and THE COMPLETE ANTI-FEDERALIST (Herbert Strong ed., 1981).
28. Regarding the disputes between these groups, see Nowak, supra note 2. See generally JOSEPH M. LYNCH, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT (1999).
29. EDWIN EMERY, THE PRESS AND AMERICA, AN INTERPRETIVE HISTORY OF THE MASS MEDIA 105 (3d ed. 1972).
30. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). See generally John E. Nowak, Book Review, 68 CAL. L. REV. 1223 (1980) (reviewing CHOPER, supra). A number of professors have disputed Professor Wechsler's and Professor Choper's view of the federal system. Since these scholars are wrong, I am not going to cite them. I'll bet that you can find citations to those persons in other papers in this Symposium.
31. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). See generally John E. Nowak, Book Review, 68 CAL. L. REV. 1223 (1980) (reviewing CHOPER, supra). A number of professors have disputed Professor Wechsler's and Professor Choper's view of the federal system. Since these scholars are wrong, I am not going to cite them. I'll bet that you can find citations to those persons in other papers in this Symposium.
32. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). See generally John E. Nowak, Book Review, 68 CAL. L. REV. 1223 (1980) (reviewing CHOPER, supra). A number of professors have disputed Professor Wechsler's and Professor Choper's view of the federal system. Since these scholars are wrong, I am not going to cite them. I'll bet that you can find citations to those persons in other papers in this Symposium.
33. 517 U.S. 44 (1996).
34. See Nowak, supra note 2, at 1423-25, for reference to the records of the Convention and the notes of the Committee of Detail.
35. One author, at the start of the 20th century, asserted that James Wilson drafted the Article III language concerning jurisdiction over suits against states. See Allen Caperton Braxton, The Eleventh Amendment, Address Before The Virginia State Bar Association (July 30-31, 1907), in REPORT OF THE NINETEENTH ANNUAL MEETING OF THE VIRGINIA STATE BAR ASSOCIATION 172 (John B. Minor ed., 1907).
36. See Nowak, supra note 2, at 1426-27.
37. THE FEDERALIST No. 81, at 487-88 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
38. 2 U.S. (2 Dall.) 419 (1793).
39. See CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY (1972).
40. See Nowak, supra note 2, at 1437-41.
41. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
42. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
43. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
44. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
45. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
46. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
47. A reader interested in the history of the 14th Amendment's adoption might want to refer to the following works: HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), JOSEPH C. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956), WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988), JACOBUS TENBROEK, EQUAL UNDER LAW (1965), and Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, in 62 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 1 (Faculty of Political Science of Columbia University eds., 1914). The history of the Amendment is also summarized in relation to two more particular legal inquiries in Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955), and Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
48. Act of Apr. 9, 1866, ch. 31, 14 Stat. 27. This law was passed by overriding Johnson's veto. See CONG. GLOBE, 39th Cong., 1st Sess. 1809, 1861 (1866) (Senate and House).
49. Act of July 16, 1866, ch. 200, 14 Stat. 173. There was an earlier bill to continue the Freedman Bureau which was passed by Congress but vetoed by President Johnson. The attempt to override the veto in the Senate failed at that time. See CONG. GLOBE, 39th Cong., 1st Sess. 943 (1866). However, a second bill was reintroduced on this subject which also included a section establishing jurisdiction in military courts to protect the rights of freedmen in the South. This bill was passed over the veto of President Johnson. See id. at 3842. The provision for military jurisdiction was contained in section 14 of that bill.
50. 521 U.S. 507 (1997).
51. Justice Scalia voted for the Court's interpretation of the 14th Amendment but he would not sign-on to Kennedy's description of the original intent of the framers and ratifiers of the 14th Amendment. See id. at 507 (Scalia, J., concurring). Justice Stevens concurred in Boerne because he thought the Religious Freedom Restoration Act violated the religion clauses of the First Amendment. His position concerning the scope of congressional power under the 14th Amendment was unclear. See id. at 536-37 (Stevens, J., concurring). Justice Souter believed that the Boerne case should have been dismissed without a ruling on the merits of the case. See id. at 565 (Souter, J., dissenting). Justice Breyer, in Boerne, did not wish to address the question of whether the 14th Amendment justified the legislation. See id. at 544 (Breyer, J., dissenting). In the June 23, 1999 decisions, Justices Stevens, Souter, Ginsburg, and Breyer disputed the Gang of Five's interpretation of Boerne. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2213-19 (1999) (Stevens, J., joined by Souter, Ginsburg, & Breyer, JJ., dissenting).
52. For the comments of those who were in opposition to the Amendment because it "constitutionalized" the Civil Rights Bill, see, for example, CONG. GLOBE, 39th Cong., 1st Sess. 2461 (1866) (statement of Rep. Finck), id. at 2506 (statement of Rep. Eldridge), id. at 2538 (statement of Rep. Rogers), and id. at 2512-13 (exchange between Reps. Raymond and Wilson).
53. The letter appeared in The Cincinnati Commercial, among other papers. See Browning Letter, CINCINNATI COM., Oct. 26, 1866, at 2. See Nowak, supra note 2, at 1457-58, for a reprint of the Browning letter.
54. See Fairman, supra note 28, at 68-81; Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 CONST. COMMENTARY 235 (1984).
55. The Constitutional Amendment - A Cabinet Lawyer's Objections, N.Y. HERALD, Oct. 25, 1866, at 6. Similar sentiments can be found in TENBROEK, supra note 28, at 219-20, The Browning Letter: Comments of the New York Press, CINCINNATI COM., Oct. 26, 1866, at 1, and Secretary Browning's Letter - The President and the Amendment, N.Y. TIMES, Oct. 25, 1866, at 4.
56. The Constitutional Amendment - A Cabinet Lawyer's Objections, N.Y. HERALD, Oct. 25, 1866, at 6. Similar sentiments can be found in TENBROEK, supra note 28, at 219-20, The Browning Letter: Comments of the New York Press, CINCINNATI COM., Oct. 26, 1866, at 1, and Secretary Browning's Letter - The President and the Amendment, N.Y. TIMES, Oct. 25, 1866, at 4.
57. The Constitutional Amendment - A Cabinet Lawyer's Objections, N.Y. HERALD, Oct. 25, 1866, at 6. Similar sentiments can be found in TENBROEK, supra note 28, at 219-20, The Browning Letter: Comments of the New York Press, CINCINNATI COM., Oct. 26, 1866, at 1, and Secretary Browning's Letter - The President and the Amendment, N.Y. TIMES, Oct. 25, 1866, at 4.
58. The Constitutional Amendment - A Cabinet Lawyer's Objections, N.Y. HERALD, Oct. 25, 1866, at 6. Similar sentiments can be found in TENBROEK, supra note 28, at 219-20, The Browning Letter: Comments of the New York Press, CINCINNATI COM., Oct. 26, 1866, at 1, and Secretary Browning's Letter - The President and the Amendment, N.Y. TIMES, Oct. 25, 1866, at 4.
59. See Boerne v. Flores, 521 U.S. 507, 523 (1999).
60. The statute included authority for the federal government to use force to enforce the civil rights protected by the statute and, under certain circumstances, to suspend the writ of habeas corpus. See Act of Apr. 20, 1871, ch. 22, §§ 2-6, 217 Stat. 13.
61. See CONG. GLOBE, 42d Cong., 1st Sess. 459 (1871) (Statementof Rep. Coburn).
62. See, e.g., Act of Feb. 8, 1894, ch. 25, 28 Stat. 36.
63. 5 U.S. (1 Cranch) 137 (1803).
64. See Strauder v. West Virginia, 100 U.S. 303 (1879).
65. 100 U.S. 313 (1879); see also Benno Schmidt, Juries, Jurisdiction and Race Discrimination: The Last Promise of Strauder v. West Virginia, 61 TEX. L. REV. 1401 (1983).
66. 476 U.S. 79, 134 (1986) (Rehnquist, J., dissenting).
67. 118 U.S. 356 (1886).
68. See 3 RONALD D. ROTUNDA & JOHN E. NOWAK, 3 TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 18.12(b), at 472-75 (3d ed. 1999).
69. See Buchanan v. Warley, 245 U.S. 60 (1917).
70. See Pace v. Alabama, 106 U.S. 583 (1882).
71. See Cumming v. Board of Educ., 175 U.S. 528 (1899).
72. See Berea College v. Kentucky, 211 U.S. 45 (1908).
73. See Logan v. United States, 144 U.S. 263 (1892).
74. 92 U.S. 542 (1876).
75. For an account of the violence that was the background for this litigation, see Brooks D. Simpson, This Bloody and Monstrous Crime, CONST., Fall 1992, at 38.
76. See Ex parte Yarbrough, 110 U.S. 651 (1884).
77. See United States v. Reese, 92 U.S. 214 (1876).
78. See United States v. Harris, 106 U.S. 629 (1883).
79. 109 U.S. 3 (1883).
80. See id. at 15.
81. There appear to have been, by a conservative estimate, almost 5000 lynchings of racial minorities. The state-by-state lynching estimates contained in the Tuskegee University Lynching Reports are quoted in Mark Mayfield & Tom Watson, Guilt, Innocence Blur with Passage of Time, USA TODAY, Sept. 25, 1992, at 2A. For an account of the number of persons lynched, by race, from 1882 to 1970, see also U.S. BUREAU OF THE CENSUS, THE STATISTICAL HISTORY OF THE UNITED STATES: FROM COLONIAL TIMES TO THE PRESENT 422 (1976).
82. There appear to have been, by a conservative estimate, almost 5000 lynchings of racial minorities. The state-by-state lynching estimates contained in the Tuskegee University Lynching Reports are quoted in Mark Mayfield & Tom Watson, Guilt, Innocence Blur with Passage of Time, USA TODAY, Sept. 25, 1992, at 2A. For an account of the number of persons lynched, by race, from 1882 to 1970, see also U.S. BUREAU OF THE CENSUS, THE STATISTICAL HISTORY OF THE UNITED STATES: FROM COLONIAL TIMES TO THE PRESENT 422 (1976).
83. Information concerning the Tulsa race riot of 1921 was provided by Professor Alfred L. Brophy, who has given the author of this Essay a draft of his article, based on a report he wrote for the Oklahoma Legislature's Commission on the Tulsa Race Riot, that is tentatively titled Reconstructing the Dreamland: Contemplating Civil Rights Actions and Reparations for the Tulsa Riot of 1921 (1999) (on file with the author & the Notre Dame Law Review). See also Jim Yardley, Panel Recommends Reparations in Long-Ignored Tulsa Race Riot, N.Y. TIMES, Feb. 5, 2000, at 1. The State of Florida has taken action to compensate the remaining survivors and descendants of persons murdered in the 1923 "Rosewood Massacre." See Rosewood Massacre-Investigation Compensation, 1994 FLA. LAWS ch. 94-359.
84. 19 U.S. (1 Wheat.) 264 (1821).
85. Hans v. Louisiana, 134 U.S. 1, 20 (1890).
86. 209 U.S. 123 (1908).
87. For an examination of the change in the Court's position toward protection of the interest of racial minorities, see MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, MAKING CIVIL RIGHTS LAW], MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) [hereinafter TUSHNET, THE NAACP], and see also DERRICK BELL, RACE, RACISM AND AMERICAN LAW §§ 1.1-.17, 7.1-.14 (3d ed. 1992) (discussing racism in the context of public schools), Derrick Bell, Law, Litigation, and the Search for the Promised Land, 76 GEO. L.J. 229 (1987) (reviewing TUSHNET, THE NAACP, supra), and Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).
88. For an examination of the change in the Court's position toward protection of the interest of racial minorities, see MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, MAKING CIVIL RIGHTS LAW], MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) [hereinafter TUSHNET, THE NAACP], and see also DERRICK BELL, RACE, RACISM AND AMERICAN LAW §§ 1.1-.17, 7.1-.14 (3d ed. 1992) (discussing racism in the context of public schools), Derrick Bell, Law, Litigation, and the Search for the Promised Land, 76 GEO. L.J. 229 (1987) (reviewing TUSHNET, THE NAACP, supra), and Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).
89. For an examination of the change in the Court's position toward protection of the interest of racial minorities, see MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, MAKING CIVIL RIGHTS LAW], MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) [hereinafter TUSHNET, THE NAACP], and see also DERRICK BELL, RACE, RACISM AND AMERICAN LAW §§ 1.1-.17, 7.1-.14 (3d ed. 1992) (discussing racism in the context of public schools), Derrick Bell, Law, Litigation, and the Search for the Promised Land, 76 GEO. L.J. 229 (1987) (reviewing TUSHNET, THE NAACP, supra), and Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).
90. For an examination of the change in the Court's position toward protection of the interest of racial minorities, see MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, MAKING CIVIL RIGHTS LAW], MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) [hereinafter TUSHNET, THE NAACP], and see also DERRICK BELL, RACE, RACISM AND AMERICAN LAW §§ 1.1-.17, 7.1-.14 (3d ed. 1992) (discussing racism in the context of public schools), Derrick Bell, Law, Litigation, and the Search for the Promised Land, 76 GEO. L.J. 229 (1987) (reviewing TUSHNET, THE NAACP, supra), and Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).
91. For an examination of the change in the Court's position toward protection of the interest of racial minorities, see MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, MAKING CIVIL RIGHTS LAW], MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) [hereinafter TUSHNET, THE NAACP], and see also DERRICK BELL, RACE, RACISM AND AMERICAN LAW §§ 1.1-.17, 7.1-.14 (3d ed. 1992) (discussing racism in the context of public schools), Derrick Bell, Law, Litigation, and the Search for the Promised Land, 76 GEO. L.J. 229 (1987) (reviewing TUSHNET, THE NAACP, supra), and Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).
92. See Daniel v. Paul, 395 U.S. 298 (1969); Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
93. See Runyon v. McCrary, 427 U.S. 160 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
94. See United States v. Guest, 383 U.S. 745 (1966).
95. See Fullilove v. Klutznik, 448 U.S. 448 (1980).
96. See Oregon v. Mitchell, 400 U.S. 112 (1970).
97. See id. at 112; South Carolina v. Katzenbach, 383 U.S. 544 (1969).
98. See United Jewish Org. v. Carey, 430 U.S. 144 (1977).
99. See Brown v. Board of Educ., 347 U.S. 483 (1954); 3 ROTUNDA & NOWAK, supra note 46, § 18.8.
100. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); 3 ROTUNDA & NOWAK, supra note 46, § 18.9.
101. For an analysis of the shift in the Court's rulings, see John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345 (1995).
102. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
103. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). Atonio has been superseded by federal statute. See The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended at 42 U.S.C. § 1981 (1994)).
104. See Martin v. Wilks, 490 U.S. 755 (1989). Martin has been superseded by federal statute. See The Civil Rights Act of 1991, 105 Stat. at 1071. For a discussion of the bar against collateral attacks of consent decrees, see Susan S. Grover, The Silenced Majority: Martin v. Wilks and the Legislative Response, 1992 U. ILL. L. REV. 43.
105. See Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989). Lorance has been superseded by federal statute. See The Civil Rights Act of 1991, 105 Stat. at 1071.
106. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989).
107. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989). Patterson has been superseded by federal statute. See The Civil Rights Act of 1991, 105 Stat. at 1071.
108. The Civil Rights Act of 1991, 105 Stat at 1071, was adopted after President Bush had vetoed legislation that was in many ways similar to the final act. For analysis of the interaction of Congress, the Supreme Court, and the President regarding the creation of civil rights, see Symposium, Civil Rights Legislation in the 1990s, 79 CAL. L. REV. 591 (1991), and Stephen F. Ross, Legislative Enforcement of Equal Protection, 72 MINN. L. REV. 311 (1987).
109. The Civil Rights Act of 1991, 105 Stat at 1071, was adopted after President Bush had vetoed legislation that was in many ways similar to the final act. For analysis of the interaction of Congress, the Supreme Court, and the President regarding the creation of civil rights, see Symposium, Civil Rights Legislation in the 1990s, 79 CAL. L. REV. 591 (1991), and Stephen F. Ross, Legislative Enforcement of Equal Protection, 72 MINN. L. REV. 311 (1987).
110. The hearings concerning the nomination of David H. Souter to be an Associate Justice are documented in Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 101st Cong. (1991), reprinted in 16 THE SUPREME COURT OF THE UNITED STATES: HEARINGS AND REPORTS ON SUCCESSFUL AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT JUSTICES BY THE SENATE JUDICIARY COMMITTEE, 1916-1990, at 123, 202-10, 256-57, 263, 276-77, 316-18, 364-65, 374-75, 385, 429, 460-63 (Roy M. Mersky et al. eds., 1992).
111. 497 U.S. 547 (1990).
112. See id. at 601 (Stevens, J., concurring).
113. 515 U.S. 200 (1995).
114. See Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
115. See Mobile v. Bolden, 446 U.S. 55 (1980). The Court found sufficient proof of discriminatory purpose in Rogers v. Lodge, 458 U.S. 613 (1982).
116. Pub. L. No. 97-205, § 3, 96 Stat. 134 (1982) (amending 42 U.S.C. § 1973(b) (1994)).
117. See Thornburg v. Gingles, 478 U.S. 30 (1986).
118. See Voinovich v. Quilter, 507 U.S. 146 (1993). See 3 ROTUNDA & NOWAK, supra note 46, § 18.4, for references to additional Voting Rights Act cases.
119. 509 U.S. 630 (1993).
120. See Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996). The Shaw litigation returned to the Supreme Court for a third time in 1999. In Hunt v. Cromartie, 119 S. Ct. 1545 (1999), the Justices unanimously ruled that a district court should not have entered summary judgment against the government in a case involving an allegation of race conscious districting. The Justices simultaneously split five to four regarding their assessment of the evidence that had been presented to the lower court. Justice Thomas's majority opinion (for the Gang of Five) stated that the statistical and circumstantial evidence presented in the motions to the district court "tends to support an inference" that the legislature had a predominantly racial motive when it adopted the districting plan. Id. at 1546. Justice Stevens, writing for four Justices who concurred only in the judgment of the Court in Cromartie, indicated that the evidence that had been presented to the district court demonstrated that the motivation of the legislature was political, rather than racial. See id. at 1555 (Stevens, J., joined by Souter, Ginsburg, & Breyer, JJ., concurring in the judgment).
121. 515 U.S. 900 (1995).
122. Id. at 927.
123. Johnson v. Miller, 929 F. Supp. 1529 (S.D. Ga. 1996).
124. 521 U.S. 74 (1997).
125. The dissenters pointed out, once again, that minority race persons would have been under-represented even if the majority had allowed the Georgia legislature to create three districts with a minority race voter majority. See id. at 103 (Breyer, J., joined by Stevens, Souter, & Ginsburg, JJ., dissenting).
126. 517 U.S. 952 (1996).
127. See id. at 990 (O'Connor, J., concurring).
128. 493 U.S. 265 (1990).
129. Id. at 306 (Brennan, J., joined by Marshall, Blackmun, & Stevens, JJ., dissenting).
130. See Board of Educ. v. Dowell, 498 U.S. 237 (1991).
131. See id. at 256-57 (Marshall, J., joined by Blackmun & Stevens, JJ., dissenting).
132. See Missouri v. Jenkins, 515 U.S. 70 (1995); 3 ROTUNDA & NOWAK, supra note 46, § 18.9 (regarding school desegregation cases).
133. See Printz. v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). Justice Souter joined the Gang of Five in New York v. United States, but he dissented in Printz.
134. See United States v. Lopez, 514 U.S. 549 (1995). Justices Stevens, Souter, Ginsburg, and Breyer dissented in Lopez.
135. The Violence Against Women Act, 42 U.S.C. § 13981 (1994), is being considered in a consolidated case currently before the Supreme Court: United States v. Morrison, 120 S. Ct. 11 (1999) (consolidating cases and granting certiorari).
136. See Price v. Bossier Parish Sch. Bd., 120 S. Ct. 866 (2000).
137. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997).
138. See Bossier Parish Sch. Bd. v. Reno, 7 F. Supp. 2d 29 (D.D.C. 1998).
139. 119 S. Ct. 693 (1999).
140. Id. at 709 (Thomas, J., dissenting).
141. Id. at 705 (Kennedy, J., joined by Rehnquist, C.J., concurring).
142. After this Essay was written, the Supreme Court interpreted the Voting Rights Act so as to prohibit the Department of Justice from denying "preclearance" to changes in voting laws that were adopted with the intent to discriminate against minority race voters if the changes did not, in fact, reduce the voting power of racial minorities. See Reno v. Bossier Parish, 120 S. Ct 866 (2000). The case was decided by a five to four vote of the Justices. Not surprisingly, the five Justices in the Bossier Parish majority were the same five Justices who had found that white voters could have a legislative district drawn to protect minority race voting power even though white voters were over-represented in a legislative delegation after the creation of the district that was designed to protect minority race voters. The Court in Bossier Parish did not rule on the scope of Congress's power to enact legislation under the 15th Amendment.
143. After this Essay was written, the Supreme Court, by a predictable five to four vote, ruled that private persons who were employed by state governments could not sue their state employer for money damages based on the state's violation of the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994 & Supp. III 1997). See Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000). With the increasing number of Gang of Five decisions, the 11th Amendment may have practical importance after all.