Today in Supreme Court History: October 19, 1789

10/19/1789: Chief Justice John Jay takes oath.

Chief Justice John Jay

Comments

[Dan Schiavetta]

Little body, big robe.

[Syd Henderson]

Probably not something to become a tradition. I like Rehnquist's gold trim a lot better,

[Commenter_XY]

Theoretical question...John Jay's court decided Chisolm v Georgia. In response, the 11th amendment was proposed and eventually passed.

In hindsight, was the 11th amendment actually needed? Why?

[Cal Cetín]

Maybe it was deemed politically necessary, but I reject the idea of shielding the a government from being sued.

(Though I admit the 11th Amendment is in the constitution, and I don't agree with getting around it with too-clever-by-half decisions like Ex Parte Young)

As for not suing the sovereign without its consent, I agree. Who's the sovereign? In this country, it's "We the People of the United States." Not the federal government and not any state government.

The problem with suing the U. S. is that money can only be drawn from the treasury by Congress, but fortunately Congress appropriated money for the Court of Claims to make financial awards to those mistreated by the federal government. At least in theory, I don't know about in practice.

[Michael D]

I appreciate your comments. Thank you

Along this line of thinking, I had the thought that if one cannot sue the sovereign (state) and your point about the problem that one is basically suing the taxpayers, then liability for harm must fall on individuals. But they are generally protected from liability. I am not sure where this leaves us.

[wolfefan]

Should we tell Will Baude about this comment so he can add it to his Ely list? 🙂

[Dilan Esper]

The 11th Amendment was apparently politically necessary because the public was upset by the notion of citizens of one state suing another state.

But Chisolm was rightly decided, and the Supreme Court's later decision to completely ignore the text of the 11th Amendment and reconstitute "the king can do no wrong" sovereign immunity despite the Supremacy Clause was and remains one of the great outrages of American jurisprudence.

[Bob from Ohio]

Pity he did not accept his second CJ appointment. No John Marshall, perhaps Marbury turns out differently.