With his retirement to begin on June 30 at noon, Justice Breyer leads a 5-4 split in Torres v. Texas Department of Public Safety, with the Chief Justice and Justice Kavanaugh, along with Justices Sotomayor and Kagan, joining him in holding that, by virtue of the states having ratified the Constitution, they agreed that their sovereignty would yield to the national power to raise and support the Armed Forces. Accordingly, Congress may exercise this national power to authorize private damages suits against nonconsenting states. Congress did just that when it passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers, and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. § §4301 et seq.

Mr. Torres is a former serviceman who suffered lung damage during his deployment to Iraq. Upon his discharge, he requested that his Texas state employer reinstate him to his previous job with an accommodation for his condition. The agency refused, and Torres sued. What is particularly interesting in this case, whose employment and tort law elements are limited to the states’ conduct with respect to military servicemembers, is the fact that both the Chief Justice and Justice Kavanaugh have joined the jurisprudential liberals of the Court in a Breyer opinion that strikes a note that could have been taken from...

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