Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/34

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Author:John Glover Roberts, with whom Author:Clarence Thomas joins, concurring in part and dissenting in part.

The parties to this case are Alabama, Florida, North Carolina, Tennessee, Virginia, and the Southeast Interstate Low-Level Radioactive Waste Management Commission. One of these things is not like the others: The Commission is not a sovereign State. The Court entertains its suit—despite North Carolina’s sovereign immunity—because the Commission “asserts the same claims and seeks the same relief as the other plaintiffs.” Ante, at 23. Our Constitution does not countenance such “no harm, no foul” jurisdiction, and I respectfully dissent.

The Court has made this mistake before. In Arizona v. California, 460 U. S. 605 (1983), we allowed Indian Tribes that could not sue sovereign States to piggyback on the claims of the United States, which could. We reasoned that once the United States had initiated suit, the state defendants could “no longer. . . assert [their] immunity with respect to the subject matter of [the] action,” so the Tribes were free to pile on and join the suit. Id., at 614. Today the Court retraces Arizona’s steps, quoting that case for the proposition that when private plaintiffs “‘do