In the torrent of major cases that came down at the end of this historic Supreme Court term, you’d be forgiven if you missed the 5-4 decision in Torres v. Texas Department of Public Safety. But the decision—in which Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s progressives to vindicate the right of a disabled war veteran to challenge his state employer’s refusal to grant him accommodations based on Texas’s claims of “state sovereign immunity”—offered a significant victory for millions of veterans and current members of the armed services. Particularly in the aftermath of this otherwise brutal term for progressives, the decision is worth celebrating.
Here’s the background. Leroy Torres was an Army Reservist who was called up for active duty in Iraq, where his lungs were damaged by toxic burn pits. The damage to Torres’ lungs prevented him from assuming his previous duties as a Texas State Trooper, but when he asked for an accommodation to a different role, the Texas Department of Public Safety refused and fired him. Torres sued under the Uniformed Services Employment and Reemployment Rights Act, which requires employers to offer reasonable accommodations to employees with any service-related disabilities, including reemploying them in equivalent positions. Here, though, is where things got weird. Texas’ primary defense was that Torres shouldn’t be allowed to start a lawsuit seeking damages for the violation of federal law. Why, you might ask? Because of a doctrine called “state sovereign immunity” that allows states to openly violate federal law and, says that unless the state consents, the victim can’t sue to get compensation.
Starting with the Rehnquist Court, conservative justices increasingly expanded the concept of state sovereign immunity to prevent individuals from suing state entities for damages under a wide variety of federal laws, including those covering minimum wage and overtime, personal medical leave, disability discrimination, and age discrimination.
Several times the court has stated that nonconsenting states could not face suit under federal laws enacted under the congressional powers set forth in Article I of the Constitution, like those governing interstate commerce. In recent years, the court has identified two Article I exceptions where states lack sovereign immunity: bankruptcy and eminent domain cases. The issue in Torres was whether war powers, which is the Article I power Congress used to pass USERRA, should be a third exception. By a 5-4 vote, the court held that it was.
The Constitution gave the federal government “broad and sweeping” war powers. Moreover, as it gave the federal government this power, the Constitution also explicitly took away virtually any role for the states in national security, save for maintaining militias under congressional regulation. This grant of power was not accidental, as it was one of the primary reasons for the Constitutional Convention and a major topic of discussion at the state ratification debates. Leaving military matters up to the states nearly cost us the Revolutionary War, so one of the Founders’ principal objectives was to rectify this problem by concentrating the new nation’s war powers with the federal government. At issue in Torres was whether, despite this constitutional history, states could thwart the federal government’s national security policies by pleading immunity any time an individual tried to enforce their USERRA rights. In the Torres oral argument Justice Stephen Breyer, who authored the majority opinion, stressed that this interference was not hypothetical, noting that states’ objections to the Vietnam War was what led Congress to subject state employers to private USERRA suits.
The Torres majority held that this history showed that, by ratifying the Constitution, the states gave up any sovereignty they might have had when it came to military matters. As a result, the federal government is free to subject states to whatever lawful war powers-based laws it wants, as it did with USERRA. This is great news for state employees like Torres, who are now able enforce their USERRA rights even if they work for one of the 37 states like Texas that refuse to consent to such suits or subject themselves to their own USERRA-type laws. Even better is that future plaintiffs won’t have to wait for five years to start their USERRA litigation like Torres, whose victory at the Supreme Court means that he now has approval to start his actual USERRA claim against his former employer.
Despite the overall good news, there are some dark aspects to Torres. In particular, the four dissenting justices displayed some crassly hypocritical logic in their attempt to shut the courthouse doors to USERRA plaintiffs.
The hypocrisy primarily hinges on the selective use of textualism. Here, the dissenting justices would have rejected Torres’ claim not only by ignoring congressional intent in favor of a hyper-narrow textualist reading of the USERRA text, but also by employing a legal theory that openly rejects the notion that state sovereign immunity is limited by the Constitution’s text.
The dissent’s interpretation of USERRA is disturbing enough on its own. There is zero question that Congress intended for USERRA plaintiffs to be able to sue state employers in state court. In 1998, only two years following the Supreme Court’s initial decision to drastically expand state sovereign immunity in federal courts, Congress explicitly amended USERRA for the primary purpose of ensuring that individuals could sue their states in state court. (Only one year after this amendment the court moved the goalpost further, by applying state sovereign immunity in states courts too.) Despite this, the dissenting justices were perfectly willing to turn the law’s language into knots to reach a conclusion that they knew full well was the exact opposite of what Congress had sought to do. This is textualism at its worst: claiming to ignore everything except the text of the law, while at the same time reading the law in an artificially narrow way to get a result the justices know is contrary to congressional intent. But that’s not the worst of it.
After openly rejecting congressional intent based on their reading of the law’s text, in the next breath the dissent relied on a theory that explicitly rejects the language of the Constitution’s text. The Constitution only speaks to state sovereign immunity in federal courts. Therefore, in order to extend immunity to state courts—like the Texas courts in Torres—the Supreme Court had to classify this constitutional text as merely confirming, but not limiting, the immunity states possessed before ratifying the Constitution. That holding gives rise to one inexplicable aspect of the court’s sovereign immunity law in which justices who claim to be textualists—including the godfather of textualism, Justice Antonin Scalia—sign on to a theory that openly dismisses text.
In Torres, then, the dissenters both insisted on following only statutory text while at the same time insisting on following a theory that refuses to follow constitutional text. Underscoring this “heads-I-win-tails-you-lose” take is the fact that all the dissenting justices were in the majority in Dobbs, which only a few days before held that abortion was not a constitutional right because—wait for it—that right is not listed in the constitutional text.
Let’s celebrate Torres and the fact that two justices were willing to cross ideological lines to help protect military service members and to uphold what was clearly the intent of the Founders and states when they ratified the Constitution. But the Torres dissent also serves as a reminder that many justices seem determined to use whatever argument is at hand, no matter how inconsistent it is with their prior votes, to achieve the result they want.