Fear and Loathing in Alabama: The Emotional Subtext of University of Alabama v. Garrett

Abstract

It becomes increasingly apparent that our familiar doctrinal tools - text, history, precedent, public policy - will take us only so far in deciphering the Supreme Court's protective, almost reverential attitude toward the states' sovereign immunity. University of Alabama v. Garrett and other sovereign immunity cases contain numerous signals about the Supreme Court's emotional commitments and blind spots: toward Congress, toward civil rights plaintiffs and civil rights statutes, and toward its own prerogatives. These cases, as they help redraw the boundaries between the Court and Congress, and between federal and state government, are animated by empathy for some actors and failure of empathy toward others, by assumptions about who is worthy of trust, who is likely to act in bad faith, and whose dignity needs protecting. The article suggests we should pay closer attention to the unarticulated emotional commitments at play in Garrett and related federalism cases, so we can better evaluate the vision of constitutional federalism they advance.