 | Narrowing the Nation''s Power: The Supreme Court Sides with the States Subjects: Governmental liability -- United States -- States; State governments -- United States -- Privileges and immunities; United States. Supreme Count; Narrowing the Nation's Power is the tale of how a cohesive majority of the Supreme Court has, in the last six years, cut back the power of Congress and enhanced the autonomy of the fifty states. The immunity from suit of the sovereign, Blackstone taught, is necessary to preserve the people's idea that the sovereign is "a superior being." Promoting the common law doctrine of sovereign immunity to constitutional status, the current Supreme Court has used it to shield the states from damages for age discrimination, disability discrimination, and the violation of patents, trademarks, copyrights, and fair labor standards. Not just the states themselves, but every state-sponsored entity--a state insurance scheme, a state university's research lab, the Idaho Potato Commission--has been insulated from paying damages in tort or contract. Sovereign immunity, as Noonan puts it, has metastasized. "It only hurts when you think about it," Noonan's Yalewoman remarks. Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed. Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction. John Thomas Noonan Jr. was born in Boston, Massachusetts on October 24, 1926. He received a bachelor's degree in English from Harvard University. He studied at St. John's College at the University of Cambridge. He received a master's degree and a doctorate in philosophy from the Catholic University of America in Washington and a law degree from Harvard Law School. After law school, he worked for President Dwight D. Eisenhower's national security adviser, defeated Michael S. Dukakis for a seat on the Brookline, Massachusetts Redevelopment Authority, and joined his father's Boston law firm. In 1961, he taught law at the University of Notre Dame. In 1966, he joined the faculty of the University of California, Berkeley, Boalt Hall School of Law, where he taught until he was appointed a judge. He was appointed to the appeals court in San Francisco in 1985 by President Ronald Reagan. He sat on the federal bench through December 2016. He wrote several books during his lifetime including Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, Persons and Masks of the Law, Bribes, The Responsible Judge: Readings in Judicial Ethics, The Lustre of Our Country: The American Experience of Religious Freedom, and Narrowing the Nation's Power: The Supreme Court Sides with the States. He died from heart failure on April 17, 2017 at the age of 90. (Bowker Author Biography) |
