reaching unnecessary constitutional decisions in Kimel!

[Edward A Hartnett]

Eugene Volokh asks:

If the seven Justices who thought Congress abrogated the immunity hadn't
reached the constitutional issue, I'm not sure how they could have cast
their votes.

My reply:

The seven who thought that Congress abrogated the immunity did have to reach the
constitutional question.  It was proper, then, for O'Connor, Rehnquist, and
Scalia to decide that Congress lacked the constitutional power to abrogate and
vote for the state.  It was equally proper for Stevens, Souter, Ginsburg and
Breyer to decide that Congress had the constitutional power and vote for the
state.

What I object to is Thomas and Kennedy reaching the constitutional issue.
Having concluded that Congress did not intend to abrogate, they should voted for
the state without addressing the constitutional issue.

This procedure would decide the case: Five votes to affirm the judgment in favor
of the state; four dissenting votes to reverse.

This is a particular hobby horse of mine.  If you are really interested,
[shamless self-promotion warning] see A Matter of Judgment, Not a Matter of
Opinion, 74 NYU 123 (1999).

Ed Hartnett