Chief Justice Roberts relied heavily in his dissent on the unprecedented nature of the Court’s expansion of Ex Parte Young in Virginia v. Stewart to cast doubt on its constitutionality. Perhaps most relevant for constitutional doctrine du jour is his focus on the lack of historical precedent:
Unlike the plaintiffs in Ex parte Young—and, for that matter, unlike any other plaintiff that has ever sought to invoke Ex parte Young before this Court—petitioner is a state agency seeking to sue officials of the same State in federal court. The Court is troubled by this novelty, ante at 12–13, but not enough. <b>See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 25) (“Perhaps the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent” (internal quotation marks omitted)); cf. Alden, 527 U. S., at 743–745; Printz v. United States, 521 U. S. 898, 905–910, 918, 925 (1997).
This quote may be used in briefs in a certain case that may find its way to the Court soon.
Update: The Chief was in an unprecedented mood this morning, for sure. During arguments in American Elec. Power Co. v. Connecticut, Chief Justice Roberts questioned respondent about whether in the 22 year history of the Court has any party found standing for a suit as broad as this one, involving global warming:
CHIEF JUSTICE ROBERTS: Do you agree –General Katyal began his argument in fairly dramatic fashion by saying we’ve never in 222 years had a case where the relief, the damages and the relief sought, were as broad as they are here. Do you have anything to rebut his proposition? Any case where it has been asbroad as it is here?