Courts

Supreme Court Turns Its Back On 40 Years Of Precedent, CC Susan Collins

State sovereign immunity is back with a vengeance.

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I’m not going to lie, I don’t much care about the issue at the center of today’s 5-4 Supreme Court decision in Franchise Tax Board of California v. Hyatt. The case is about state sovereign immunity: whether states can be sued by other states in their state. I know this makes me a “bad” law-talker guy, but I don’t really care. I think it’s marginally better if California can sue Nevada in California, and I think that the possibility that Nevada will sue California in Nevada is enough to keep everybody playing nice… but I don’t really care. While we’re here, I’ll just add that I don’t really care about the Eleventh Amendment. This juris-my-diction crap was never really my thing.

What I do care about is that this question was one of settled law. Nevada v. Hill, decided in 1979, held that states lack sovereign immunity in each other’s courts. So, cool. John Paul Stevens wrote the majority opinion and William Rhenquist dissented; that it’s been good law for 40 years is good enough for me on this issue.

It wasn’t good enough for conservatives. They’ve been waiting for a generation for their opportunity to re-make the Court. Now they have the power, and they’re going to start re-making things, stare decisis be damned.

Clarence Thomas wrote the majority opinion for the Court. From a certain point of view, this is Thomas’s most significant 5-4 majority decision in his entire career, thus far.

With the historical record and precedent against him, Hyatt defends Hallon the basis of stare decisis. But stare decisisis “‘not an inexorable command,’” Pearson v. Cal-lahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997). The Court’s precedents identify a number of factors to consider, four of which warrant mention here: 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. ___, ___–___ (2018)(slip op., at 34–35); United States v. Gaudin, 515 U. S. 506, 521 (1995).

The first three factors support our decision to overrule Hall. We have already explained that Hall failed to ac-count for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered the States’ relationships with one another. We have also demonstrated that Hall stands as an outlier in our sovereign-immunity jurisprudence, particularly when compared to more recent decisions.

That there is a so-called conservative justice, brushing away 40 years of precedent with “stare decisis is not an inexorable command.”

It’s not, of course, but whenever actual progress is on the table, these guys like to hide behind precedent. Here, we find that precedent doesn’t matter so much when Thomas and the conservatives have a chance to change a decision they don’t like. Are there any changed circumstances in the field of state sovereignty now that didn’t apply in 1979? Any new facts or social learning? Nope. They just didn’t have the votes in the past to change it, and now they do.

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If that worries you about what other precedents this court might want to overturn, it should. It worries Stephen Breyer, who wrote the dissent.

It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. 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 Halleven 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 think we all know what the Court might overrule next. Thomas’s entire reasoning smacks of something he could use to overturn Roe v. Wade. The fact that Breyer quoted Planned Parenthood v. Casey was not an accident. The conservatives are laying the groundwork to overturn Roe, and everybody knows it.

Well, everybody besides Susan Collins, perhaps. The fifth vote to overrule the precedent of Nevada v. Hill was Brett Kavanaugh, who Collins believes “respects precedent” despite all evidence to the contrary.

The conservatives and the Federalist Society have all the power now. They’re going to upset a lot of “settled law” now.

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Franchise Tax Board of California v. Hyatt [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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