535 U.S. ____ (2002)

SUPREME COURT OF THE UNITED STATES

Nos. 00—1531 and 00—1711

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

[May 20, 2002]

Justice Kennedy, concurring.

For the reasons well stated by the Court, I agree Verizon Maryland Inc. may proceed against the state commissioners in their official capacity under the doctrine of Ex parte Young, 209 U.S. 123 (1908). When the plaintiff seeks to enjoin a state utility commissioner from enforcing an order alleged to violate federal law, the Eleventh Amendment poses no bar. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 271 (1997) (principal opinion of Kennedy, J., joined by Rehnquist, C. J.).

This is unlike the case in Idaho v. Coeur d’Alene Tribe of Idaho, supra, where the plaintiffs tried to use Ex parte Young to divest a State of sovereignty over territory within its boundaries. In such a case, a “straightforward inquiry,” which the Court endorses here, ante, at 9, proves more complex. In Coeur d’Alene seven Members of this Court described Ex parte Young as requiring nothing more than an allegation of an ongoing violation of federal law and a request for prospective relief; they divided four to three, however, over whether that deceptively simple test had been met.

In my view, our Ex parte Young jurisprudence requires careful consideration of the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law. See Coeur d’Alene, supra, at 267—280 (principal opinion of Kennedy, J., joined by Rehnquist, C. J.). I believe this approach, whether stated in express terms or not, is the path followed in Coeur d’Alene as well as in the many cases preceding it. I also believe it necessary. Were it otherwise, the Eleventh Amendment, and not Ex parte Young, would become the legal fiction.

The complaint in this case, however, parallels the very suit permitted by Ex parte Young itself. With this brief explanation, I join the opinion of the Court.