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Let The Decision Stand…Or Not

The newest Supreme Court opinion revisits stare decisis.

Two days ago, the Supreme Court issued a 5-4 ruling on the topic of sovereign immunity.  While that may be a topic that no one knows about, the case has implications outside of sovereign immunity.

The short version of this is that the federal government possesses immunity from lawsuits by virtue of a common law understanding of the source of power. The federal government can only be sued if it consents to it.  This concept has no basis in the constitution, but that’s because, as I mentioned, it is assumed from our common law heritage.  But! State sovereign immunity is discussed in the 11th amendment.  The citizens of a state or foreign country cannot sue another state in federal court.

This specific case, Franchise Tax Board Of California V. Hyatt, deals with a lawsuit brought by a Nevada resident against the state of California.  The Supreme Court ruled that states retain their sovereign immunity in the state courts of other states.  That is somewhat irrelevant except for the fact that it provides the backdrop for a potential upheaval in jurisprudence.

Let’s start with Justice Breyer’s dissent. 

Justice Breyer says,

“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next. I respectfully dissent.”

I can only wonder too.

Justice Thomas wrote the majority opinion.  It says:

“Stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233, and is “at its weakest” when interpreting the Constitution, Agostini v. Felton, 521 U. S. 203, 235. The Court’s precedents identify, as relevant here, four factors to consider: the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision, and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___. The first three factors support overruling Hall. As to the fourth, case-specific reliance interests are not sufficient to persuade this Court to adhere to an incorrect resolution of an important constitutional question. Pp. 16–17″

Justice Thomas is known for his love of stare decisis. He loves stare decisis, just not enough to keep him from running back to the constitution.  His concurrences and dissents tend to set a clear path that few are willing to go along with.  Yet this case earned the support of enough justices, including the notoriously milquetoast Chief Justice.

While Justice Breyer’s warning may seem prescient to those who fear the coming Penceian theocracy, SCOTUSblog notes that overturning precedent usually comes with backlash from the liberal justices. 

SCOTUSblog’s Richard Re says this,

“Or perhaps not. Breyer’s warning echoed Justice Thurgood Marshall’s 1991 dissent in Payne v. Tennessee, which likewise reacted to a divisive rejection of precedent. In words that Breyer could have borrowed, Marshall wrote that the Payne majority “ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store.” Marshall, too, was worried in part about the fate of abortion rights. And it is indeed natural to think that a cleanup today could generate a teardown tomorrow. But when the next case actually arrived, the court decided Casey — in favor of precedent.”

Erick made a similar point.

It’s difficult to gauge what this case means for Roe.  We may just need Thomas’ boldness.  Scholars agree that Roe is lousy case law.  Yet we are required to affirm its status as “super precedent.” 

It shouldn’t matter how old the case is, how many cases are built on top of it, if it were wrongly decided, nothing should hold us back from overturning it.

On a different note

California v. Hyatt is an interesting case for an additional reason.  As we have seen since Justice Scalia’s tenure, and the addition of Thomas, Alito, Gorsuch, and Kavanaugh, even the liberal justices have to make Originalist arguments. 

Thomas and Breyer duel over the history surrounding sovereign immunity and whether it was absolute or a matter of grace extended by the sister states, as Justice Breyer put it. 

This is good for our country. 


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