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1/ Thread on Franchise Tax Board v. Hyatt #SCOTUS
2/ Nevada v. Hall (1979) found that the text and history of the Constitution "do not answer the question whether the Constitution places any limit on the exercise of one's State's power to authorize its courts to assert jurisdiction over another State." 
3/ FTB v. Hyatt (2019) found that Hall found that "the Eleventh Amendment, and our sovereign-immunity precedents did not bear on the question because they "concerned questions of federal-court jurisdiction.'"
4/ J. Thomas found that Hall "misreads the historical record and misapprehends the “implicit ordering of relationships within the federal system" (qouting J. Rehnquist's dissent). And, for good measure, he cites C.J. Marshall's "We must never forget" passage from McCulloch
5/ The crux of Thomas's opinion turns on the historical analysis from Alden v. Maine, which held that as an original matter, states were immune from private suits. This argument was premised on "implicit," rather than "explicit" textual commands.
6/ In our new book/video library, @RandyEBarnett and I discuss the atextual, and historical basis of the Rehnquist Court's 11th Amendment jurisprudence. J. Souter's dissents were far more considerate of the original meaning of the Constitution than were the majority opinions
7/ Regrettably, Justice Thomas joined all of those opinions, and now Roberts, Alito, Gorsuch, and Kavanaugh have signed on board. They are convinced, for whatever reason, that Rehnquist, and not Souter, had the better historical analysis of sovereign immunity.
8/ I saw "whatever reason," because this issue is not an obvious ideological issue that splits right/left. Frankly, the outcome in this case is quite inconsequential. Breyer didn't even bother reading his dissent from the bench. (He was not in Court on Monday).
9/ But J. Thomas, the most prominent originalist on the Court, is convinced that the Alden majority, and not Souter's dissent, is the correct originalist approach to sovereign immunity. And, the Alden majority relied on an "implicit" structural argument, not an explicit text.
10/ Indeed, to accept Hans v. Louisiana (wrongly decided), the Court has to accept this sort of "implicit" argument. J. Thomas had to assert that Chisholm was a "blunder." (It was right).
11/ I would much rather Thomas adopt the position of J. Harlan in Hans. Chisholm "scholar.google.com/scholar_case?c… based upon a sound interpretation of the Constitution as that instrument then was."
12/ Instead, J. Thomas disparages the text of the 11th Amendment, as did Alden, as a "ahistorical literalism."
13/ Next, J. Thomas notes that "There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice"
14/ This passage has been widely criticized as Griswold-esque (penumbras and emanations). I disagree. Thomas is merely describing the concept of historical glass, most clearly articulated by J. Frankfurter in Youngstown.
15/ Thomas is not only describing doctrines that are "implicit" in the Constitution, but those doctrines that "are supported by historical practice." He cites judicial review, executive immunity, and the removal power.
16/ None of these doctrines are spelled out in the text of the Constitution. But they are all deeply rooted in tradition and practice. The same goes for sovereign immunity post-Hans.
17/ Thomas should have also cited Noel Canning here to mollify its author, Justice Breyer, who dissented vigorously on this point.
18/ A focus on deeply-rooted practice (a la Glucksberg) would address, at least in part, J. Breyer's rejoinder about substantive due process.
