With the retirement of Justice Souter, the Court’s most strident opponent of the Seminole Tribe line of cases is no longer on the bench. In Bay Mills, RBG reaffirmed her opposition to cases finding that Congress has limited powers in abrogating a state’s sovereign immunity:
For the reasons stated in the dissenting opinion I joined in Kiowa, id., at 760–766 (opinion of Stevens, J.), and co- gently recapitulated today by JUSTICE THOMAS, this Court’s declaration of an immunity thus absolute was and re- mains exorbitant. But I also believe that the Court has carried beyond the pale the immunity possessed by States of the United States. Compare ante, at 3, n. 3 (THOMAS, J., dissenting), with Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting) (“[T]he Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. . . . I part company from the Court because I am convinced its decision is fundamentally mistaken.”); Kimel v. Florida Bd. of Re- gents, 528 U. S. 62, 93 (2000) (Stevens, J., dissenting in part and concurring in part) (“Congress’ power to author- ize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power.”); Alden v. Maine, 527 U. S. 706, 814 (1999) (Souter, J., dissenting) (court’s enhancement of the States’ immunity from suit “is true neither to history nor to the structure of the Constitution”). Neither brand of immoderate, judi- cially confirmed immunity, I anticipate, will have staying power.
So Justices Kagan and Sotomayor, there is stare decisis for Kiowa, but what about Seminole Tribe?