Page:United States Reports 502 OCT. TERM 1991.pdf/369

 502us1$16L 08-21-96 15:27:13 PAGES OPINPGT

Cite as: 502 U. S. 197 (1991)

211

O’Connor, J., dissenting

III The Court gives no guidance to lower courts as to when it will apply the clear statement rule and when it will not. The Court’s obscurity on this point does little to further the goals of stability and predictability that assertedly drive its analysis. The Court says only that stare decisis will prevail over the clear statement rule when Congress has manifested its acquiescence in this Court’s statutory interpretation by its silence, and when citizens have “acted in reliance on a previous decision.” Ante, at 202. Yet we have previously applied the clear statement rule despite the presence of both of these considerations. Just four years ago, we held that Congress did not manifest its consent to allow States to be sued for FELA damages in federal court, despite congressional silence in the face of our long-established holding in Parden. Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987). Do the intervening four years make it more likely that Congress has silently consented to the remaining encroachment upon state sovereignty Parden sanctioned? How long must Congress remain silent before we declare its constructive consent to our statutory interpretation? The suggestion that this Court can, in some cases, better divine Congress’ will to change the balance of power between the Federal Government and the States by listening to congressional silence than to a clear legislative statement substitutes telepathy for statutory interpretation. In deciding when to ignore the requirements of the clear statement rule, the Court also considers the extent to which citizens have relied on our past decisions. This analysis looks to the reliance of the employees who may be without a remedy if FELA does not apply to their state employers. From the standpoint of the States, however, the Court ignores the fact that we generally do not assume States waive their right to challenge an abrogation of their traditional authority just because they have acquiesced in, or even relied