Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/35

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not seek to bring new claims or issues,. . . our judicial power over the controversy is not enlarged. . ., and the States’ sovereign immunity protected by the Eleventh Amendment is not compromised.’” Ante, at 23 (quoting Arizona, supra, at 614).

That statement is contrary to the language of the Constitution. The Eleventh Amendment provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The immunity conferred is against the “commence[ment] or prosecut[ion]” of “any suit in law or equity.” There is no carve-out for suits “prosecuted” by private parties so long as those parties “ ‘do not seek to bring new claims or issues.’” Ante, at 23 (quoting Arizona, supra, at 614).

Understandably, the Court’s opinion leans heavily on Arizona, which has never been squarely overruled. Ante, at 23–24. But Arizona itself is built on sand. The relevant portion of that opinion is almost wholly unreasoned. It cites only a footnote in a prior case, the pertinent paragraph of which failed even to discuss the State’s immunity from private suit. See 460 U. S., at 614 (citing Maryland v. Louisiana, 451 U. S. 725, 745, n. 21 (1981)). That paragraph addressed only intervention, not sovereign immunity, and the two issues are distinct. See South Carolina v. North Carolina, 558 U. S. ___, ___, n. 5 (2010) (slip op., at 10, n. 5).

Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona’s already weak foundations. We recognized in Alden v. Maine, 527 U. S. 706, 718 (1999), that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the