PennEast Pipeline Co. v. New Jersey

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, dissenting.¶verify

I join JUSTICE BARRETT’s dissenting opinion in full, which ably explains why this case implicates New Jersey’s structural immunity and how New Jersey never waived that immunity in the summer months of 1787. I write only to address one recurring source of confusion in this area and which the Court does not address. In the same breath, the district court said an Eleventh Amendment objection “is a challenge to a district court’s subject matter jurisdiction” and yet “it does not implicate federal subject matter jurisdiction.” App. to Pet. for Cert. 64–65. Both statements cannot be true. This Court, it seems, has contributed to the confusion. It has “sometimes referred to the States’ immunity from suit as ‘Eleventh Amendment immunity.'' Alden v. Maine , 527 U. S. 706, 713 (1999); see also, e.g., ante , at 20. Though it might be a “convenient shorthand,” the phrase is “a misnomer.” Alden , 527 U. S., at 713. States have two distinct federal-law immunities from suit. 1¶verify

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1 States may also have state-law immunity from suit in a state forum. That immunity derives from a State’s “sole control” of “its own courts.” Alden , 527 U. S., at 740, 749. A State is free to develop its own justiciability rules governing state tribunals. See Missouri v. Lewis , 101 U. S. 22, 30 (1880); ASARCO Inc. v. Kadish , 490 U. S. 605, 617 (1989). That¶verify

The first—“structural immunity”—derives from the structure of the Constitution. See Franchise Tax Bd. of Cal. v. Hyatt , 587 U. S. ___, ___ (2019) (slip op., at 16). Because structural immunity is a constitutional entitlement of a sovereign State, it applies in both federal tribunals, Seminole Tribe of Fla. v. Florida , 517 U. S. 44, 51–52 (1996), and in state tribunals, Alden , 527 U. S., at 712. And it applies regardless of whether the plaintiff is a citizen of the same State, Allen v. Cooper , 589 U. S. ___, ___ (2020) (slip op., at 2), a citizen of a different State, or a non -citizen—like a foreign nation, Principality of Monaco v. Mississippi , 292 U. S. 313, 330 (1934), or an Indian tribe, Blatchford v. Native Village of Noatak , 501 U. S. 775, 781 (1991). Structural immunity sounds in personal jurisdiction, so the sovereign can waive that immunity by “consent” if it wishes. Hyatt , 587 U. S., at ___–___ (slip op., at 6–7); see Wisconsin Dept. of Corrections v. Schacht , 524 U. S. 381, 394 (1998) (Kennedy, J., concurring).¶verify

The second—what is properly termed “Eleventh Amendment immunity”—derives from the text of the Eleventh Amendment. In light of its swift adoption in response to Chisholm v. Georgia , 2 Dall. 419 (1793), this Court has read the Eleventh Amendment as pointing to the structural principle just discussed. See Allen , 589 U. S., at ___ (slip op., at 4). But the Eleventh Amendment can do two things at once. See Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U. S. 743, 753 (2002). In addition to pointing us back to the States’ structural immunity, it also provides an ironclad rule for a particular category of diversity suits:¶verify

“The Judicial power of the United States shall not be¶verify

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is why this Court has found that state-law immunity provides an adequate and independent state ground for affirming a state-court judgment. E.g., Georgia R. & Banking Co. v. Musgrove , 335 U. S. 900 (1949) ( per curiam ); Palmer v. Ohio , 248 U. S. 32, 34 (1918). Because PennEast sued in federal court, state-law immunity is not implicated here.¶verify

construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U. S. Const., Amdt. 11.¶verify

This text “means what it says. It eliminates federal judicial power over one set of cases: suits filed against states, in law or equity, by diverse plaintiffs.” Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 612 (2021).¶verify

The Eleventh Amendment sometimes does less than structural immunity: It applies only in federal court (“the Judicial power of the United States ”). And it applies only to diversity suits (“by Citizens of another State ”). But sometimes the Amendment does more: It imposes an Article III subject-matter jurisdiction barrier (“The judicial Power . . . shall not be construed to extend ”), not a mere privilege of personal jurisdiction. And it admits of no waivers, abrogations, or exceptions (“to any suit in law or equity”).¶verify

This case appears to present “the rare scenario” that comes within the Eleventh Amendment’s text. Brief for Respondent State of New Jersey 12. Because PennEast sued New Jersey in federal court, this suit implicates “the Judicial power of the United States.” See 28 U. S. C. §§132, 451. This condemnation suit, by any stretch, is “a[ ] suit in law or equity.” See Kohl v. United States , 91 U. S. 367, 376 (1876) (“a proceeding to take land” and “determin[e] the compensation to be made” is “a suit at common law”); Boom Co. v. Patterson , 98 U. S. 403, 406–407 (1879) (same). PennEast “commenced” this suit “against” New Jersey. It named the State in its complaint as a defendant as required by the Civil Rules. Fed. Rule Civ. Proc. 71.1(c)(1). And it asked the court for an injunction permitting it to take “immediate possession” of New Jersey’s soil. Hagood v. Southern , 117 U. S. 52, 67–68 (1886) (“The State is not only the real party to the controversy, but the real party against which relief is sought by the suit.”). Because the parties agree that PennEast is a citizen of Delaware, this suit is brought “by [a] Citizen[ ] of another State.” See Tr. of Oral Arg. 25–27; see also State Farm Fire & Casualty Co. v. Tashire , 386 U. S. 523, 531 (1967).¶verify

If that’s all true, then a federal court “shall not” entertain this suit. The Eleventh Amendment’s text, no less than the Constitution’s structure, may bar it. This Court, understandably, does not address that issue today 2 because the parties have not addressed it themselves and “there is no mandatory ‘sequencing of jurisdictional issues.'' Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp. , 549 U. S. 422, 431 (2007). The lower courts, however, have an obligation to consider this issue on remand before proceeding to the merits. See Steel Co. v. Citizens for Better Environment , 523 U. S. 83, 94–95, 101 (1998).¶verify

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2 What the Court does say, in a drive-by rumination on the waivability of “the Eleventh Amendment,” pertains to structural immunity. Ante , at 20. All of the cases it cites fall outside of the Eleventh Amendment’s text. The Court’s language, then, conflating structural immunity and Eleventh Amendment immunity furnishes just the latest example of the “misnomer” this Court already put to bed in Alden . Supra, at 1.¶verify