Today in Supreme Court History

Today in Supreme Court History: February 5, 1793

|The Volokh Conspiracy |

2/5/1793: Chisholm v. Georgia argued.

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  1. Ultimately affirmed, overruling the Eleventh Amendment. Yes, you can sue states in federal court. Conservatives didn’t like this idea during the civil rights era, but they changed their minds with Bush v Gore.

    1. Don’t you have that backwards?

      11A was written precisely to overturn Chisolm.

      Even the Supremes can’t overrule the Constitution (as amended, etc.).

      1. No. The Eleventh Amendment has been negated. Not technically, but via various legal fictions (e.g., the “stripping” doctrine) and the federalizing of so much law, it has hardly any substance now. If Chisholm sued today he would be perfectly fine doing it in federal court.

        One could say that it’s now the general rule that states can be sued in federal court. Though exceptions have been carved out by statute (e.g., the Tax Injunction Act — one can no longer sued in federal court over a state tax issue).

    2. “they changed their minds with Bush v Gore”

      The Supreme Court reversed the Supreme Court of Florida.

      1. The suit was against state election officials. The Supreme Court held that a candidate could sue a state (in particular, its election officials) in federal court.

        To be sure, such a right already existed as to a protected class, which according to Scalia & co had consisted only of black people (following existing Amendments). They added a second protected class, “unsuccessful Republican Presidential nominees”.

        1. “The suit was against state election officials. ”

          Yes, in state court.

          The only federal court involved was the US Supreme Court.

          1. Yes that’s my point.

            The defendants were state officials who found themselves, on appeal, being sued in federal court.

            1. It’s clear you have no idea what you’re talking about. I assume (hope?) you’re not a lawyer.

              1. If the United States Supreme Court accepts an appeal from a state supreme court, it necessarily means that the lawsuit could have been brought in federal court in the first place.

  2. Apedad, the first comment was sarcastic!

    But, Chisholm v. Georgia probably sets the record for the fastest reversal of a SCT decision through a constitutional amendment. Other SCT decisions have been reversed by statute (Ledbetter), which can be even quicker.

    1. It’s a short list of SCOTUS decisions, isn’t it? Maybe Pollock v. Farmers Loan, right? And Breedlove v. Suttles?

      1. Dred Scot?

        1. Black people owe their liberation to the iron fist of federal power. That should never be forgotten.

      2. The 26th didn’t necessarily reverse Oregon v. Mitchell but superseded it.

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