An article in the American Bar Association Journal highlighted a decision of the High Court this week to overturn one of its prior cases. As an initial disclaimer, I proudly admit I am not a member of the ABA nor do I know that I ever will be.
In the case, Franchise Tax Board of California v. Hyatt, the U.S. Supreme Court held that one state cannot be sued in another state’s courts unless it specifically consents to do so. That, in and of itself, is important.
But what is striking about this case is that it reversed a 1979 case on the same issue, Nevada v. Hall. Writing for the majority, Justice Thomas reasoned: “Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts. We therefore overrule that decision.”
And liberal heads exploded.
Not only did Thomas, writing for the so-called conservative block, overrule one of their favorite precedents, he used historical evidence to do so. That’s a double-whammy. Justice Breyer, writing for Justices Ginsburg, Sotomayor, and Kagan, naturally, dissented, declaring their never-ending love for precedent and how cases, even those that might be wrong, should not be overruled absent the strictest of circumstances. He wrote: “But ‘an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.’”
(Just more evidence of why our civil-law state with its de-emphasis on precedent is a much better system than the common law system. In the words of one of our great LSU Law Professors: “that’s a court, that’s a case, that’s not the law.” But I digress.)
Now, you may be thinking, gee, with all of the abortion debates going on, do you suppose the Supreme Court is looking towards the case which asks them to overrule Roe v. Wade. With all of this talk about overruling precedent, is this just a warm-up fight to overrule Roe v. Wade? I think there is evidence in the affirmative.
That evidence is contained in the dissent when Justice Breyer really gets going on why the Supreme Court shouldn’t overrule precedents:
In any event, stare decisis requires us to follow Hall, not overrule it. See Planned Parenthood of Southeastern Pa.v. Casey, 505 U. S. 833, 854–855 (1992); see also Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 7–8). Overruling a case always requires “‘spe-cial justification.’” Kimble, 576 U. S. , at ___ (slip op., at 8). What could that justification be in this case? The majority does not find one.
The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” Kimble, 576 U. S. , at ___ (slip op., at 8). Three dissenters in Hall also believed that Hall was wrong, but they recognized that the Court’s opinion was “plausible.” 440 U. S., at 427 (opinion of Blackmun, J.). While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.
Notice Justice Breyer’s citation to the case of Planned Parenthood of Southeastern Pa. v. Casey. The Supreme Court, in that decision, passed up the opportunity to overrule Roe v. Wade because it was, in their view, settled precedent. Note that Justice Breyer does not want to NEVER overrule a case…. he only wants to not overrule when it suits him. According to author Michael J. Gerhardt, in his book The Power of Precedent, Justice Breyer urged overruling and joined in overruling 14 times during the last 11 years of the Rhenquist Court, or 1.27 times per year.
This may be a stretch of an argument and this may all be a huge coincidence, but it would seem to me that at least the abortion cases are on the mind of the collective court. There are any number of cases that could be used to back up that proposition, but Breyer went to the abortion cases.
The lawyer who argued the case on behalf of Mr. Hyatt seemed to agree:
“This case shows that precedent gets little weight with the conservative justices on the Roberts’ Court; Justice Breyer expresses this well in his dissent,” says Erwin Chermerinsky, dean of University of California, Berkeley, School of Law, who argued the case on behalf of Hyatt in January. After the oral arguments, Chermerinsky wrote that his sense was that the discussion was really about “how the court is going to treat precedent when issues like abortion, affirmative action, and gay and lesbian rights return to the court.” In other words, will Roe v. Wade be next?
Plus, the formula Thomas uses is a winner for conservatives. He looked at the relevant constitutional provisions with an eye toward their original meaning, i.e. what those provisions meant when they were adopted. Finding that the Hall case was not in line with that history, he overruled it. This could bode well for those wishing to overturn Roe. Remember that Justice Rheinquist also took a historical view in his dissent in Roe: “There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
All in all, this may be one of the biggest wins for conservatives all year. The idea that the U.S. Supreme Court could revisit the erring decisions of the Warren Court, re-examine them based on their original meanings, and make legal and not policy determinations of their meaning is an exciting idea.