0:00:00.1 Speaker 1: Shut up, fellas. Just shut your mouth. Put Hans back on the line.

[music]

0:00:07.1 Leon: Hey everyone, this is Leon from Prologue Projects. On this episode of 5-4, Peter Rhiannon and Michael are talking about Hans v. Louisiana. This is a case from 1890 in which here Supreme Court held that a citizen couldn't sue the state they lived in in federal court. The result was that if your state violated your constitutional rights, you could not sue the state. Instead, you are to find a state official who is responsible for the violation and sue them. Over the years, however, the court has granted immunity to more and more state officials, making it increasingly difficult to vindicate your rights. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:54.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have broken our nation like a cop on the subway breaking his Candy Crush high score.

0:01:03.2 Michael: Nice. [laughter]

0:01:04.7 Rhiannon: Getting paid time and a half. Time and a half. Sorry. Introduce us. Go ahead.

[laughter]

0:01:09.1 Peter: I'm Peter. I am here with Rhiannon.

0:01:11.3 Rhiannon: Hello.

0:01:12.7 Peter: And Michael.

0:01:13.1 Michael: Hi everybody.

0:01:14.2 Peter: Michael Fresh off a good night's sleep.

[laughter]

0:01:19.1 Michael: I got about 90 minutes of sleep.

0:01:21.9 Rhiannon: Best sleeper on the pod. It's a real race to the bottom.

0:01:24.8 Michael: Yeah.

0:01:25.0 Peter: It really is.

0:01:25.1 Rhiannon: Between the three of us. [laughter]

0:01:27.4 Peter: Every recording we hop on and I'll be like, "I slept like shit", and then Michael will be like," I slept like too". And Rhi will be like, "I also slept poorly". That's how we start off every single meeting.

0:01:39.2 Rhiannon: Yeah.

0:01:39.3 Michael: Yeah. So since I was late to this recording, 'cause I was so out of it this morning, I guess Rhiannon contacted my wife.

0:01:46.6 Rhiannon: Yeah, I did.

0:01:46.9 Michael: She called me in a panic and like as I answered the phone, she's like, "Did Rhi get in touch with you?" And it's like, "Yeah". And I was chasing Vive Ants with a Red Bull.

[laughter]

0:02:00.3 Michael: Be like, "Alright, I'm going to record".

0:02:02.1 Rhiannon: Yeah. Yeah. We're all good Babe.

[laughter]

0:02:07.6 Peter: That's another Michael deep lore, not a coffee guy, Red Bull in the morning guy.

0:02:11.8 Rhiannon: Yeah.

0:02:12.3 Michael: That's right.

0:02:12.7 Rhiannon: Yeah.

0:02:13.2 Michael: Sugar free.

0:02:13.8 Peter: Deeply unhinged stuff from my buddy Michael Alright. Today's case, Hans v. Louisiana. This is a case from 1890 about whether a citizen of one state can sue the state that they live in. See, the 11th Amendment says very clearly that a citizen of a state cannot sue another state.

0:02:39.4 Michael: Right.

0:02:39.8 Peter: So if you're a New York citizen, you cannot file a lawsuit against the state of Texas. It's in the Constitution. But this guy wanted to file a lawsuit against his own state. That's a different thing.

0:02:51.6 Rhiannon: Right.

0:02:52.3 Peter: Right?

[laughter]

0:02:53.3 Peter: There's nothing in the Constitution saying you can't do that. But the Supreme Court in a unanimous decision...

0:03:01.5 Rhiannon: Yeah.

0:03:01.6 Michael: Yeah.

0:03:02.5 Peter: Says no, you still can't do that because like you just shouldn't be able to.

0:03:08.1 Michael: Yeah. You just don't like it.

0:03:10.1 Peter: This is a very stupid case where the court just sort of made up their own constitutional amendment, and then like added it in. But maybe more importantly, it created a pretty rough series of downstream consequences. And it is still consistently leveraged by courts to fuck you up a little bit, you know?

0:03:28.8 Rhiannon: Yeah. Yeah. Leveraged by courts to keep you out of court. Right? That's the broad downstream consequence here for Hans v. Louisiana. You know, let's talk background. And one thing about background on cases from 1890 is there isn't a lot, for example, Hans, Hans v. Louisiana, the man suing the state of Louisiana. It's just Hans, there's no last name. I don't see a last name in the opinion.

0:04:00.0 Peter: It was a simpler time.

0:04:01.0 Michael: Yeah. [laughter]

0:04:01.6 Rhiannon: They're just like this guy Hans. Yeah. Maybe Hans is the last name and we don't know the first name. But anyways, it's a guy Hans and Hans is suing about bonds. I don't know what a bond is.

0:04:18.8 Peter: It is a debt security.

0:04:20.3 Michael: Yes.

0:04:21.4 Rhiannon: Great.

0:04:22.6 Michael: That clears everything up.

[laughter]

0:04:24.8 Rhiannon: Yeah. Yeah. Definitely makes sense now. So what happened was Hans, one named Hans, was a citizen of Louisiana. He purchased bonds from the state of Louisiana. But then the state of Louisiana amended its state constitution in a way that made Hans scared that Louisiana wasn't going to pay him the interest accrued on the bonds. So he was suing the state of Louisiana. He sued in federal court to say, "Hey, no, I purchased these bonds in Louisiana. Basically Louisiana owes me money. There was accrued interest on these bonds that Louisiana owes me. They can't just change their law to mean that they don't owe me that money owe anymore". So that's the case. That's it. And you see that the question becomes not really whether Louisiana should or should not pay Hans the interest that is owed to him, but whether Hans can sue the state that he lives in in the first place.

0:05:27.8 Michael: If the state you live in steals from you, can you sue them to recover the money they have stolen from you? [laughter]

0:05:36.8 Peter: Yeah.

0:05:36.9 Rhiannon: Right.

0:05:37.6 Peter: Will Hans get his bonds or are they stringing Hans along?

[laughter]

0:05:43.6 Peter: Alright.

0:05:44.0 Michael: Now, I have in my head is the Ellis from the original Die Hard being like Hans Booby.

[laughter]

0:05:52.1 Michael: That's what I have in my head. I'm your white knight.

0:05:54.8 Peter: Michael on one hour of sleep.

0:05:58.4 Michael: [laughter] You're rattling off 30 year olds movie references.

0:06:01.6 Peter: [chuckle] So let's talk about the 11th Amendment. The 11th Amendment passed in 1794. It was prompted by a lawsuit that went up to the Supreme Court where a guy tried to sue a state that he did not live in. We'll talk about that very shortly. The 11th Amendment reads, and I quote, "The judicial power of the United States shall not be construed to extend to any suit in law and equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. So, a little verbose, but can't start a lawsuit against a state if you're a citizen of another state. Right.

0:06:47.1 Michael: Right.

0:06:48.4 Peter: Very specific. But again, Hans is not trying to sue another state. He's trying to sue the state that he lives in.

0:06:56.6 Michael: Right.

0:06:56.7 Rhiannon: Right.

0:06:57.7 Michael: For our lay listeners, there's sort of two big ways you get into federal court. One is called diversity jurisdiction. That is like when, you know, a citizen of Connecticut sues a citizen of New York and it's like, well, the New Yorker doesn't feel like they can get a fair trial in Connecticut in the Connecticut resident. Doesn't feel like they can get a fair trial in New York, so you hear it in federal court, that's called diversity jurisdiction because there's a diversity of states.

0:07:25.5 Peter: That stems from back in the day when like a Connecticut state court would be like, "Well I love this guy from Connecticut".

0:07:30.8 Rhiannon: Right.

0:07:30.9 Michael: Right.

0:07:31.6 Peter: This is my homie from Connecticut. I hate that fucking guy from New York.

0:07:35.1 Rhiannon: Right.

0:07:35.9 Michael: That's right. And the other big way is called like federal question jurisdiction, which is like federal courts here, questions about federal law. The constitution, federal statutes, et cetera. I think a very reasonable way to read the 11th Amendment is that diversity jurisdiction does not extend to suing another state.

0:08:00.1 Michael: Right.

0:08:00.7 Peter: Like you can sue another person in another state, but you can't just sue another state.

0:08:06.3 Rhiannon: Right. That's not gonna get you into a federal court. Right?

0:08:12.0 Michael: I think that's a very reasonable reading of the 11th Amendment.

0:08:30.9 Peter: Right. So just to sort of understand the principles behind the 11th Amendment, part of it is this sort of antiquated concept about state sovereignty that, you can trace through English, common law, can't sue the king. Right? . But the other thing is about this sort of new system that was created in America in the late 1700s where you have these sort of separate sovereign states. And so the idea in like broad strokes is like, well the states are their own sovereigns to some degree they have no obligation to the citizens of some other state. And so, a citizen of Tennessee can't sue Kentucky and like try to bankrupt Kentucky for some shit that they did. It was a more contentious time among the states. So anyway, all of this is sort of besides the point because again, Hans is not trying to sue another state.

0:09:08.5 Rhiannon: Yeah. Yeah.

[laughter]

0:09:10.2 Peter: All of this is just historical color for you. All right.

0:09:13.5 Michael: Right. From a 100 years prior to this case.

0:09:17.9 Peter: Right.

0:09:18.0 Michael: Yeah.

0:09:18.6 Peter: So the court has what you might call a very novel analysis here. They say, okay, the 11th Amendment does not actually say that you can't sue your own state. We all agree with that. But the court says the only reason the 11th amendment doesn't say that is because it's actually obvious.

0:09:38.7 Michael: Everybody knew it.

0:09:39.2 Peter: Right. What the court says is that when the Constitution was written, suing your own state was so inconceivable that the founders didn't feel like it needed to be said. Specifically Justice Bradley, who wrote this opinion, and you don't need to ever think about it again, says, "It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of".

[laughter]

0:10:05.3 Peter: So literally, he's like, no one... The reason it's not in the Constitution is that this is the most outrageous idea in history. So the argument is that the idea that a citizen cannot sue his own state is so fundamental that they did not put it in the Constitution. Which presumably means it's even more fundamental than the stuff they did put in the Constitution. That's the logic we're working with here.

[laughter]

0:10:36.8 Peter: It's like yeah, this isn't in the Constitution because it's so obvious, it's actually so important that it's not in the Constitution.

0:10:45.6 Rhiannon: And it's like it clearly wasn't because the 11th Amendment came about after a different Supreme Court case. Like they did realize, "Oh, like we need to clarify this and put it in the Constitution", but they again left out this part. Bradley is acting like this is just known, it's always been known. But that's not the situation at all.

0:11:08.0 Michael: No.

0:11:08.8 Peter: Yeah. So, to give you a little bit of historical context, the rationale that the court provides here is based on the history of the 11th Amendment. Basically, in 1793 there was a case called Chisholm v. Georgia, where the Supreme Court held thats citizens of one state could sue another state.

0:11:28.9 Michael: Right. So I think it's good to like wrap your head around the timeline here. The 11th Amendment only exists because the very first Supreme Court in like 1793 was like, "Yeah, of course you can sue the states, like an individual can sue the state", the opposite of what Hans v. Louisiana is saying here. And in Hans, this Supreme Court is justifying its opinion by saying, "Well, everybody knew that you can't sue states", but like obviously that's just false. Like that's just as a matter of historical record, false. The very first Supreme Court did not know that, they thought that was wrong.

0:12:10.4 Rhiannon: Exactly.

0:12:11.3 Michael: Which upset Congress and the states enough to pass an amendment. And then, like a hundred years later, the Supreme Court's like, "Oh, everybody knew that you couldn't sue the States".

0:12:21.6 Peter: I'm gonna be very generous to the court here and provide what I think is the best faith reading of this opinion, Hans v. Louisiana. What they are saying is like, "Yeah, the 11th Amendment only refers to a citizen suing a state he doesn't live in". But that's just because it was responding to a specific situation where that happened. The underlying principle is that states are sovereign and cannot be sued, period. With the obvious counter argument though, being like, if that's the underlying principle, why didn't they put that in the Constitution?

0:12:54.2 Rhiannon: Right.

0:12:54.8 Michael: Right. [laughter]

0:12:56.4 Peter: Right. The bottom line here is like, you don't need to overthink this and think about all these old common law doctrines or whatever. Like the 11th Amendment very clearly says one specific thing, and the court is just like, "Well, we think it's actually saying another thing". For all of the amendments with vague language that can be interpreted in various different ways. Like you're right to freedom of speech, who knows what that means, right?

0:13:23.4 Rhiannon: Yeah.

0:13:23.8 Peter: Everyone agrees that that's ambiguous. There are a couple of amendments that are just very straightforward and this is one of them.

0:13:30.3 Michael: Yes.

0:13:30.8 Peter: And yet the court is just like, "I don't know, I don't know".

[laughter]

0:13:35.6 Peter: What if it means this totally different thing. They're just saying history and then coming to a conclusion.

0:13:41.8 Rhiannon: Yeah. Let's get into it in terms of like the downstream effects, and how this case, the 11th Amendment, state sovereign immunity, interact with your ability to sue the state for violating your rights. So, the big downstream effect of this is basically, this is another avenue that is cut off to you when you are looking to vindicate your rights in federal court. When a state has caused you harm, constitutional harm, this case says out of thin air, you cannot sue the state you live in for doing that. Right? And so, this is another immunity doctrine. This is a form of sovereign immunity. The immunity of a state from lawsuits. But we've talked about other immunity doctrines before. There's qualified immunity that certain government officials might have if they meet certain conditions. So in 1871, you get the Ku Klux Klan Act that's better known today as Section 1983, and that says you can sue a state official for violating your constitutional rights.

0:14:52.9 Rhiannon: And it's not until the conservative reaction to the civil rights movement of the 1960s that judges start to say, "No, wait. A lot of these state officials are actually immune". So we've talked on the podcast about prosecutorial immunity. Judges also have absolute immunity. We just recently talked about presidential immunity. All of those immunity doctrines stand for different propositions about who is immune from lawsuit. But it's really important to point out that Congress passed a law allowing people to sue state officials, and then judges and the Supreme Court started to make up doctrines, judicial made doctrine to chip away at people's ability to sue those state officials.

0:15:41.5 Michael: Right, right.

0:15:42.5 Peter: You're walking through this minefield of technicalities.

0:15:46.2 Peter: Yeah. Yeah. So like just moving into like say you person, listener are harmed by the state in violation of your federal constitutional rights. If you're suing somebody who doesn't have money or an entity or organization that doesn't have anything, then you're not getting anything out of the lawsuit. So, saying that you cannot sue your state is taking away a party that for sure has deep pockets.

0:16:10.4 Peter: So I think it was Alec Karakatsanis when he was on our podcast a few years ago, said, essentially when you see these sorts of upheavals in civil rights, people becoming aware of civil rights and being able to vindicate those rights, the response from the system is not merely substantive opposition, but the creation of like this array of technicalities whereby reactionary forces have decided like, well, technically, you can't vindicate those rights. So, in the 1870s, you have the reconstruction era and the Supreme Court comes in, in this case Hans v. Louisiana and says, "Oh, you can't sue your state". Let's keep that in mind, everybody And then in the civil rights era of the 1960s, you get people who of course want to vindicate their rights there, and conservative courts step in and say, whoa, whoa, whoa. Cops are immune, judges are immune, prosecutors are immune, presidents are immune. All of these very intentionally designed barriers between you and your civil rights. So in practice, you actually have very few avenues for suing states, even if you're trying to sue state officials. Right? You're very likely to just be sort of fucked.

0:17:27.3 Michael: Yeah.

0:17:28.1 Peter: The state's immune, the officials are often immune. Who else are you gonna sue?

0:17:33.2 Rhiannon: Yeah.

[laughter]

0:17:33.8 Peter: You can't sue God. By the way, there was a concurrence in this case, and I read it and I don't understand why it was there, and I don't care and we're not gonna talk about it.

0:17:44.0 Rhiannon: Can we talk? At least there's a little bit language right up top. Again, case from 1890, this is the bullshit the Supreme Court was on. This is an action brought in the Circuit Court of the United States in December, 1884, against the state of Louisiana by Hans, one name, a citizen of that state, to recover the amount of certain coupons annexed to bonds of the state issued under the provisions of an act of the legislature approved January 24th, 1874. The bonds are known and designated as the consolidated bonds. I mean, come on, this is Supreme Court justice. Easiest job in the world once again.

0:18:15.8 Peter: Yeah, yep.

[laughter]

0:18:17.5 Michael: Yes. Really is.

0:18:18.9 Peter: So I think all of this is a little bit abstract. We're talking about like bonds, a man with one name like Cher, and all of these like immunity doctrines that collide against one another. I think it's important to contextualize this.

0:18:35.0 Michael: Yes.

0:18:35.5 Peter: 'Cause if you just look at this legally, it's sort of incoherent. They're just like, "Well, we think the 11th amendment means something that it doesn't say". Made up bullshit. Right. But if you view it the political of its times, it actually starts to come together. We are at this point, 1890, over a decade past reconstruction, right? During reconstruction, the political power of the south was severely diminished in many respects. They were occupied by federal troops. Southern politics were subject to certain federal oversight. Widespread black enfranchisement was stripping white southern elites of their political power. After the compromise of 1877, however, troops are withdrawn, the Jim Crow era begins. And over the following years, the South reasserts its political position within the union. And there is a potential standoff here. This might seem like it's just some, about some stupid bonds, who cares? But in this era, southern states owe a good amount of money, right?

0:19:43.8 Michael: Right.

0:19:43.9 Rhiannon: Yes.

0:19:44.1 Michael: They borrowed money to fight the Civil War.

0:19:47.2 Peter: Right. They issued bonds, et cetera. And several of these states were starting to show a general intransigence. They were unwilling to pay their various debts.

0:19:57.5 Michael: Also, their economies may be hurt a little by no longer having a massive pool of unpaid labor.

0:20:03.9 Peter: Yeah. They're in their bootstrap era.

[laughter]

0:20:09.3 Peter: The federal government at this point in 1890 really no longer has the political will or even the power to force the hand of these southern states. So this case is about bonds, debt held by a southern state, but it's not really about bonds. It's about this ongoing tension between the north and the south. In this post reconstruction era, the court in this era was frequently acquiescing to the will of the South. Not just because they were sympathetic, although that was occasionally the case, but because the court was functioning as a release valve for all of this built up political pressure. Right. If Southern States had refused to pay, that could have undermined the court's power, federal power, and queued up this constitutional crisis. So the court gets to sort of avoid that crisis by saying, "Oh no, the 11th amendment means you don't have to pay". And now crisis averted by acquiescing to the whims of the southern state.

0:21:12.7 Michael: Right. This isn't a principle decision, it's just political expedience. It's depending on how you look at it, it's either pragmatic or cowardly. But in either case, it is a concession that the sort of radical Republicans have lost political power and the South is re-ascendant. The court's saying, we don't want this fight, we don't want that smoke. You know?

0:21:36.4 Peter: Yeah. This is gonna work. What we're gonna do is just let the south get its way for a few decades, and I'm sure in 130 years they won't be still waving Confederate battle flags.

0:21:47.3 Michael: Right.

0:21:48.8 Rhiannon: Right.

0:21:49.3 Michael: I'm sure this will work out fine for black citizens in the South not being able to sue their states for violating their rights.

0:21:55.4 Peter: Yeah.

0:21:55.5 Michael: No possibility for abuse there.

0:21:58.7 Peter: I mean, this is why some historians will say that the South didn't quite lose the Civil War. It was more that it was fought to a standstill.

0:22:07.1 Michael: Yeah.

0:22:07.8 Peter: Right. What's happening here is that the South has sort of re-accrued power in the post reconstruction era to the point where although they cannot implement slavery, they are not just subjugating black people within their body politic, but pushing back against the federal government very, very overtly. And very clearly sort of making these not so subtle statements that we are not really part of your republic in the same way that the northern states are.

0:22:37.6 Michael: That's right.

0:22:38.8 Rhiannon: So kind of tracking this jurisprudence through history, obviously before this case, during reconstruction, people were at least trying to sue the states that they lived in. That's why that we eventually got this case for the Supreme Court to decide whether or not that is actually allowed under a fake weird reading of the 11th Amendment. So this case comes down, says, "You cannot sue the state that you live in". And for decades after 1890, this was the rule. It didn't really come up again until the Warren Court in the late 1950s, in the 1960s, the Warren Court was breathing new life into basically all of the avenues that a person would have for suing to vindicate their constitutional rights. Section 1983, immunity doctrines, standing doctrines, all of the judicial barriers to getting into federal court, the Warren Court was rethinking them so that more lawsuits could be happening to again, vindicate your constitutional rights in federal court.

0:23:40.7 Peter: Right. Which is by the way, like what sort of like officially shuts the door...

0:23:45.8 Rhiannon: Exactly.

0:23:45.9 Peter: On Jim Crow. Following reconstruction, you get the rise of Jim Crow. And then the fact that like lawsuits against states were not being entertained, allows Jim Crow to sort of get deeply rooted in the South and is only sort of ripped out with the civil rights legislation of the '50s and '60s. And then, finally, the Warren Court sort of interpreting all of these different things a little differently to sort of allow Southern states and Southern officials to be held to account.

0:24:20.5 Rhiannon: Yeah. And then, you get another wave of history. And the 11th Amendment, Hans v. Louisiana is coming up again because now conservatives, Mr. States rights himself, William Rehnquist, the Burger Court in the 1970s are starting to kick people out of court, again. And citing Hans v. Louisiana, this case a lot in saying, wait a minute, we said, you cannot sue the state that you live in. The Rehnquist Court takes this even further. And yeah. It's just that cycle of the Supreme Court always coming back to limiting those avenues that people have for lawsuit in federal court.

0:24:57.9 Peter: Yeah. You see history like rhyming and repeating where you have the reconstruction era where it seems like civil rights are gonna be vindicated. And then the court and state governments clamp down on that in the 1880s and 1890s. And just sort of like put it to sleep for a generation. And then you see the civil rights upheavals of the '40s and '60s, and again, courts come in, state governments come in and clamp down again. And that cycle's been ongoing for centuries.

0:25:29.7 Michael: The cycle is ongoing. And the Rehnquist Court was particularly aggressive in using Hans v. Louisiana to limit the amount of damage progressives could do in the courts trying to vindicate their rights.

0:25:46.2 Peter: Right. The Rehnquist Court actually favorably cited Hans v. Louisiana several times.

0:25:51.8 Michael: Yeah.

0:25:52.2 Rhiannon: Yes.

0:25:52.5 Peter: Rehnquist himself said, and I quote, "We have understood the 11th Amendment to stand, not so much for what it says, [laughter] extremely long pause.

[laughter]

0:26:04.5 Peter: But for the presupposition of our constitutional structure, which it confirms.

[laughter]

0:26:09.7 Michael: Oh.

0:26:11.3 Peter: Sure.

0:26:11.9 Michael: Oh yeah.

0:26:12.7 Peter: Sure.

0:26:13.1 Michael: Yeah.

0:26:13.2 Peter: Absolutely.

0:26:14.4 Rhiannon: The Constitution is something you presuppose. It's presuppose by who, who knows.

0:26:21.2 Peter: These people talk so much shit about like the scope of the 14th Amendment.

0:26:25.4 Michael: Yes. And the reason of like Roe v. Wade and like Penumbras or whatever.

0:26:29.3 Rhiannon: Yes.

0:26:30.7 Peter: Right. When it's state sovereignty though, they're like, "Look, it's not what the amendment says".

[laughter]

0:26:38.3 Peter: You know what I mean? It's like, what does the amendment feel like? Like what are the vibes of this amendment?

[laughter]

0:26:42.6 Michael: What has to be in your head when you write this amendment? Let's put ourselves in the shoes.

0:26:48.4 Peter: Yeah. Let's talk about the why of the amendment.

0:26:51.8 Michael: Yeah.

0:26:52.4 Rhiannon: Yeah. All of a sudden. Yeah.

0:26:54.7 Peter: From what soil does it grow?

[laughter]

0:27:00.8 Peter: So in the late '90s and early 2000s, the Rehnquist Court cites Hans v. Louisiana a bunch of times in their effort to just sort of expand the idea of state sovereign immunity. In 1999, there's a case called Alden v. Maine where the court said that state officials couldn't sue the state for federal labor violations even in state courts. So the 11th Amendment, we didn't like parse this too much, but you know, the 11th Amendment really applies to federal court jurisdiction. So not necessarily state courts per se, but we've already established that we're not really looking at the text of the 11th Amendment so much as we are extrapolating massively from it. And so in 1999, they're like, "Yeah, you can't do it in state courts either. Fuck it, we don't, whatever. Who gives a shit?"

0:27:49.6 Rhiannon: Yeah.

0:27:50.4 Peter: There's another case called Kimel v. Florida Board of Regents where the court held that states were immune to lawsuits under the Age Discrimination in Employment Act. So where does this all leave us? Basically, the only time you can sue a state in state or federal court is when the state itself explicitly says you can sue them. The state passes a law being like, "Alright, you can sue us about this". You know?

0:28:16.7 Rhiannon: Yeah. Like for example, just throwing it out there, there are instances where you can sue the state that you live in. That's because the state law authorizes and says, "If you're going to sue the state in these instances, then this is how you do it". You know, off the top of my head, I'm thinking about in the education context, if a student or family sues the school, for example, if you need special education services for your child, or the school has acted in some way that's discriminatory under state law or a school district or the state education agency, that is because a state law authorizes that lawsuit and says, you can sue the state in this way.

0:28:57.4 Michael: Yeah. And I think a particularly salient example for our listeners of the way this case still influences our law was the awful Texas abortion bounty law, SB8. Because of Hans v. Louisiana, if a state is violating your constitutional rights, you can't sue them. But you could still sue individual state officials who are in charge of the mechanics of whatever's impinging on your rights. But SB8 by privatizing the enforcement of an abortion ban cuts state officials out, leaving you with nobody to sue. Since you can't sue Texas and you can't sue any individual state officials. There's nobody to sue to block the enforcement of this or other bounty laws. Like this is now a blueprint for how to work around constitutional rights protections by outsourcing oppression to the worst fucking people on the planet.

0:30:08.0 Rhiannon: Yeah.

0:30:08.3 Peter: So the court has really out of thin air created absolute immunity for states that shields them from lawsuits when they violate your rights. And if you try to sue a state official instead, it might work, but you will have to navigate another minefield of all these various immunity doctrines, all made up by courts too to even have your case heard. And then you might have problems with standing. You might have problems with statutes of limitations. All of the bullshit that Congress and the courts have thrown together to make it harder for you to sue. So yeah, the next time that some Federalist Society dip shit tells you that legalizing gay marriage was judicial activism, maybe ask them why they don't have such strong feelings about all of this.

0:31:01.1 Michael: Yeah.

0:31:01.6 Peter: Right. Why don't they talk about judicial activism when they're discussing the fact that the court made up its own constitutional amendment in 1890 and it's just being cited favorably to this day.

0:31:13.1 Michael: Yeah.

[music]

0:31:17.7 Peter: Next week, special episode, we were gonna do the usual thing where we pick a case and then talk about it. Unfortunately, Michael and I share a podcast with a known criminal.

0:31:31.1 Michael: Delinquents.

[laughter]

0:31:33.2 Peter: Our friend and colleague Rhiannon, attended a protest at the University of Texas at Austin and was arrested.

0:31:41.6 Rhiannon: I went to jail, guys.

0:31:43.2 Peter: Went to jail.

0:31:44.0 Michael: Punk rock.

[laughter]

0:31:45.6 Peter: You know what I have to say about that, Rhi? If you can't do the time, then do not do the crime.

[laughter]

0:31:55.7 Peter: So anyway, we thought this would be a good opportunity to talk about that arrest and talk a little bit more about the protests currently sweeping the nation. What should students know? What sort of weird little legal angles are buried in all of this that no one's really talking about or covering well in the media. We're gonna talk about all of it. What's important is that at the end of the day, instead of discussing what's happening in Gaza, we endlessly litigate what exactly college students are doing at this very moment.

0:32:27.8 Michael: That's right.

0:32:28.1 Rhiannon: Oh, and I'm gonna tell you about the food in jail.

0:32:30.2 Michael: Yes.

[laughter]

0:32:32.2 Peter: Food in... Weren't you there like overnight? What did you?

[laughter]

0:32:35.0 Rhiannon: We'll talk about it.

0:32:35.8 Peter: They gave you a little red eye meal. All right.

[laughter]

0:32:37.9 Rhiannon: And before we totally close out, just wanna say thank you. Shout out to Matt Dredson, my classmate who helped out with our research for this episode.

0:32:47.8 Peter: Alright. Thank you for listening. Follow us on social media @fivefourpod. Subscribe to our Patreon for premium episodes, special events, access to our Slack, all sorts of shit. We'll see you next week.

0:33:00.5 Speaker 6: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:33:30.7 Speaker 1: Hans Bobbi, I'm your White Knight.