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HILTON v. SOUTH CAROLINA PUBLIC RAILWAYS COMM’N O’Connor, J., dissenting

In Will, we held that if Congress intends to upset the “ ‘usual constitutional balance between the States and the Federal Government,’ ” it must make its intention to do so unmistakably clear. Will, supra, at 65 (quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)). As we determined in that case, a federal statute requiring the States to entertain damages suits against themselves in state courts is precisely the kind of legislation that requires a clear statement, because of the long-established principle that a State cannot normally be sued in its own courts without its consent. Will, supra, at 67. In Welch, we held that the language of the Jones Act, which applied the Federal Employers’ Liability Act’s (FELA’s) remedial provisions to seamen, did not amount to a clear statement of Congress’ intent to abrogate the States’ Eleventh Amendment sovereign immunity. 483 U. S., at 474–476. In so holding, we expressly stated that “to the extent that Parden v. Terminal Railway. . . is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.” Id., at 478. The result in this case should follow a fortiori from the reasoning of Will and Welch. We have already decided that a clear statement is necessary before a State may be required to entertain damages suits against itself in its own courts, and we have already decided that FELA’s language does not amount to a clear statement of Congress’ intent to abrogate state sovereign immunity. Stare decisis dictates that we follow the rules we have laid down in Will and Welch, not that we revive a substantially discredited case that litigants and lower courts had every reason to think defunct. II The Court tries to drive a wedge between Will and Welch by characterizing the former as a statutory interpretation