Footnote 1 of Ginsburg’s dissent in Coleman v. Court of Appeals of Maryland was joined only by Breyer, and not by Sotomayor or Kagan:
1I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting). Beyond debate, 29 U. S. C. §2612(a)(1)(D) is valid Commerce Clause legislation. See infra, at 21. I also share the view that Congress can abrogate state immunity pursuant to §5 of the Fourteenth Amendment where Congress could reasonably conclude that legislation “constitutes an appropriate way to enforce [a] basic equal protection requirement.” Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 377 (2001) (BREYER, J., dissenting) (internal quotation marks omitted).
And Scalia would rather not grade Congress’s homework:
The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” Tennessee v. Lane, 541 U. S. 509, 557–558 (2004) (SCALIA, J., dissenting). Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislativerecord in search of evidence that supports the congressional action. See ante, at 6–11; post, at 16–20 (opinion of GINSBURG, J.). This grading of Congress’s homework is a task we are ill suited to perform and ill advised toundertake.
I adhere to my view that we should instead adopt anapproach that is properly tied to the text of §5, whichgrants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558–560, outside of the context of racial discrimination (which isdifferent for stare decisis reasons), I would limit Congress’s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.