John Paul Stevens

“ With respect to the former-the legitimate scope of the Eleventh Amendment limitation on federal judicial power-I do not believe Congress has the power under the Commerce Clause, or under any other provision of the Constitution, to abrogate the States' immunity. A statute cannot amend the Constitution. With respect to the latter-the judicially created doctrine of state immunity even from suits alleging violation of federally protected rights-I agree that Congress has plenary power to subject the States to suit in federal court. ”

“ The Eleventh Amendment, as does Article III, speaks in terms of "judicial power." The question that must therefore animate the inquiry in any actual Eleventh Amendment case is whether the federal court has power to entertain the suit. In cases in which there is no such power, Congress cannot provide it even through a "clear statement." Many of this Court's decisions, however, purporting to apply the Eleventh Amendment, do not deal with judicial power at all. ”

“ Several of this Court's decisions make clear that much of our state immunity doctrine has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment. For example, it is well established that a State may waive its immunity, subjecting itself to possible suit in federal court. ”