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Old 05-14-2019, 06:22 PM
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Roe and the SCOTUS Hyatt Decision


I'd like to discuss the recent SCOTUS decision in Franchise Tax Board of California v. Hyatt, which I will call Hyatt, and the possible implications for Roe v Wade. In this NY Times op-ed (https://www.nytimes.com/2019/05/13/o...eme-court.html), the author argues that the conservatives on the court went out of their way to de-emphasize stare decisis, and she sees that as laying the groundwork for overturning Roe. The liberal wing's collective heads exploded at the overturning of a long-time precedent for seeming no other reason than that the majority thought it was wrongly decided. I believe that's unusual, especially for a precedent that has been around for decades.

I'm not a lawyer. My impression is that SCOTUS talk about stare decisis, but they seem to routinely overturn precedent. Overturning sections of the voting rights act and Heller spring to mind, but that's just my liberal bias showing. I don't want to argue about those.

My assumption has been that the conservative wing would have no issue overturning Roe, especially now that Kennedy is gone. I think they came pretty close in Casey -- I think that was essentially 5-4, but the wiki article talks about plurality throughout. If stare decisis had been an important concept, then it should have been 9-0.

Anyway, has anyone here read the Hyatt decision or any of the writing about it? Is the writer correct that the conservative wing is setting the stage for overturning Roe? My view is that they would have been fine overturning it without setting the stage here, but I'm happy to be convinced otherwise. Does the wording in this decision really indicate a change in their opinion of stare decisis?

I'm really hoping we can avoid debating the morality and ethics of abortion and stick to the legal issues. Pretty please?
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Old 05-14-2019, 06:37 PM
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SCOTUSblog has some of the best analysis around, IMHO, and here's how their post starts out:

Quote:
In an already familiar 5-4 lineup, the Supreme Court has overruled Nevada v. Hall, which for 40 years has stood for the proposition that states generally lack sovereign immunity in one another’s courts. The new decision vindicates a legal position long held by conservatives, but it appears to endorse a loose approach to finding structural principles in the Constitution. The ruling also adopts a less than exacting view of stare decisis — hardly surprising for Justice Clarence Thomas, who wrote the opinion of the court, but odd given that other members of the majority, particularly Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh, have expressed greater concern for precedent. Time will tell whether Hyatt has set the stage for overrulings to come. ...
Breyer's ominous warning in his dissent is discussed.
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Old 05-14-2019, 07:27 PM
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Originally Posted by HurricaneDitka View Post
SCOTUSblog has some of the best analysis around, IMHO, and here's how their post starts out:



Breyer's ominous warning in his dissent is discussed.
That article doesn't fill me with any confidence that the current crop of conservatives will give much weight to stare decisis, even though they all said how important it is when they were in front of the Senate.

Any SDMB lawyers have an opinion?
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Old 05-14-2019, 08:50 PM
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Setting aside the merits/demerits of Roe (or any other SCOTUS decision for that matter,) stare decisis has no moral argument for it whatsoever. It's tantamount to saying, "We've been doing things the wrong way for a long time, so we should keep doing things the wrong way, because.......that's how it's been done." Every legal course should be decided on the basis of its merits or demerits, not because "that's how it has been done up to now."
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Old 05-14-2019, 08:53 PM
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I am a bit of a SCOTUS junkie, but not a lawyer. I read Hyatt as well as the NYT Op Ed. While Hyatt did overturn a precedent from Nevada v Hall the NYT Op Ed comes off a bit as Chicken Little crying that the sky is falling.

This is the third time Hyatt has reached the high court. And this time it was specifically to answer whether Nevada v Hall should be overturned. The court agreed that it should be overturned and cited history of sovereign immunity doctrine. Sovereign Immunity* is the principle that a sovereign cannot be held legally liable or sued without its own consent. It runs counter to many modern ideas of fairness but it is a real thing with long legal roots.

Some background:
Nevada v Hall held that one state could be sued in the courts of another state. In that instance the California State Supreme Court held that a plaintiff who was a resident of California could sue the state of Nevada in California courts. A vehicle owned by the state of Nevada, which was being operated in California while on official state business on behalf of the state of Nevada, was in a collision in California in which the plaintiffs were injured. The California residents injured in that collision sued the state of Nevada for damages in California courts.

Nevada attempted to invoke a Nevada state statute that limited liability to $25,000. The statue was that the state of Nevada claims sovereign immunity with an exception that the state agrees to be sued for no more than $25,000 damages. California courts refused to uphold the sovereign immunity claim of the state of Nevada and awarded $1,150,000 in damages. That judgement was upheld on appeal. And ultimately the Supreme Court of the United States upheld that judgement establishing that residents of state A can sue state B in the courts of state A despite any claim of sovereign immunity on the part of state B.


The Hyatt decision essentially applies the Eleventh Amendment to suits in state courts in overruling Hall v Nevada.

Quote:
Originally Posted by Eleventh Amendment of the US Constitution
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Justice Thomas did not simply overrule based upon his personal preferences as the NYT Op Ed implies. He engaged in an analysis that delved into the history of sovereign immunity and cited Alexander Hamilton in the Federalist Papers:

Quote:
Originally Posted by The Federalist Papers No. 81, at 487
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.
Roe has nothing to do with sovereign immunity. The reasoning Thomas used in writing the Hyatt decision is not applicable to Roe. It's only vague similarity is the Op Ed author's fear that since Thomas wrote an opinion overturning Nevada v Hall that Roe could be next, but fails entirely to understand the applicability of the reasoning used.

And the Op Ed author fails to acknowledge a particularly telling line from Thomas in the Hyatt decision, " Many constitutional doctrines not spelled out in the Constitution are nevertheless implicit in its structure and supported by historical practice, e.g., judicial review, Marbury v. Madison." These "doctrines not spelled out in the Constitution" are basis for the reasoning that was used in the Roe decision to begin with and the rationale that has been used to uphold it in subsequent challenges.




* Technically this case revolved around the closely tied idea of state immunity. For purposes of discussion of the Hyatt case there is is no important difference.

Last edited by Iggy; 05-14-2019 at 08:54 PM.
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Old 05-14-2019, 08:57 PM
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Setting aside the merits/demerits of Roe (or any other SCOTUS decision for that matter,) stare decisis has no moral argument for it whatsoever. It's tantamount to saying, "We've been doing things the wrong way for a long time, so we should keep doing things the wrong way, because.......that's how it's been done." Every legal course should be decided on the basis of its merits or demerits, not because "that's how it has been done up to now."
I don't think it should be some sort of absolute, but lawyers, plaintiffs, and legislatures have to expect some sort of continuity, and not have the law change based on the whim from one set of justices to the next. If any decision can be turned over every time there's a new justice, it removes any sort of finality -- everything is always up for grabs, and there would be never-ending challenges to decisions. Lawmakers at every level will have no idea if what they're doing is constitutional.

So, I basically disagree. Constitutionality should have some amount of continuity through time. Again, it's not an absolute, but overturning precedent should be an extraordinary circumstance, not done lightly.
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Old 05-14-2019, 09:09 PM
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Iggy, I think the author of the op-ed wasn't implying that Roe had anything to do with sovereign immunity. Rather, she pointed out how the majority systematically took apart the reason why stare decisis would apply. The minority seems to agree, since they also specifically seem to worry about the cavalier attitude towards precedent. The article that HD posted also mentions the same thing.

The worry from the op-ed author is not their view on sovereign immunity and whether it's historically correct. It's that the majority overturned the precedent when there was no real need to -- it wasn't causing any issues. They overturned it because it was an "erroneous precedent" (from the op-ed).

That line from Thomas seems pretty meaningless, since there is little doubt he would vote to overturn Roe, is there? He was ready to do it in Casey, right?
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Old 05-14-2019, 10:35 PM
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I also wonder, if Roe is overturned, how soon we would get a "new Roe" - some SCOTUS decision that would basically reinstate everything that Roe did. It would first take a Democratic president + Democratic Senate, then the vacancies of one or more conservative justices, and then a legal challenge again, and the new SCOTUS would have to make a new Roe-like decision (while, at the same time, flouting the stare decisis of whatever this current-day Supreme Court judges on to overturn Roe.) Maybe a decade at least.
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Old 05-14-2019, 10:47 PM
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Originally Posted by Iggy View Post
Roe has nothing to do with sovereign immunity.
No one is claiming that it does. The concern is that this case indicates that the current make up of the court is not particularly troubled with overturning long-established precedent. A big part of Kavanaugh's testimony before the Senate hinged on his assurance that, regardless of his personal feelings about abortion, he'd respect the precedent set by Roe and decades of subsequent rulings.
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Old 05-14-2019, 11:16 PM
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Setting aside the merits/demerits of Roe (or any other SCOTUS decision for that matter,) stare decisis has no moral argument for it whatsoever. It's tantamount to saying, "We've been doing things the wrong way for a long time, so we should keep doing things the wrong way, because.......that's how it's been done." Every legal course should be decided on the basis of its merits or demerits, not because "that's how it has been done up to now."
As RitterSport wrote, the moral argument for stare decisis is that it would be unfair to people if they didn't have some idea of whether a given act was legal or illegal. By binding future courts to past decisions, people can look up the decisions that have been made and know whether something similar will be legal.

If judges were able to decide every case independently, then nobody would ever be able to predict whether something was illegal. Sure, a hundred past judges may have felt something was legal but you might be the unlucky guy who does it and then appears before a judge who thinks it's illegal.
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Old 05-15-2019, 05:19 AM
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...Sure, a hundred past judges may have felt something was legal but you might be the unlucky guy who does it and then appears before a judge who thinks it's illegal.
That wades into the area of ex post facto laws which are unconstitutional.


Quote:
Originally Posted by Iggy
Roe has nothing to do with sovereign immunity.

Quote:
Originally Posted by Miller
No one is claiming that it does. The concern is that this case indicates that the current make up of the court is not particularly troubled with overturning long-established precedent. A big part of Kavanaugh's testimony before the Senate hinged on his assurance that, regardless of his personal feelings about abortion, he'd respect the precedent set by Roe and decades of subsequent rulings.

The overall point I was trying to get across is that there was reasoning behind the ruling in Hyatt and that reasoning in would not apply to Roe.

In the post Civil War era the Supreme Court has a very long history of incorporating certain amendments to apply them to the states. The Hyatt ruling essentially does that with Eleventh Amendment rights that the states enjoy - it applies sovereign immunity to suits brought in state courts as well as federal courts.

The Eleventh Amendment was enacted to reverse Chisolm v Georgia from 1793, one of the earliest original jurisdiction cases heard by the Supreme Court. The estate of Chisolm (represented by a resident of South Carolina) sued the State of Georgia in the US Supreme Court for debts the estate was owed by Georgia for goods supplied during the Revolutionary War. The Supreme Court ruled in the favor of the Chisolm estate. Congress quickly amended the constitution specifically to overturn the precedent set by Chisolm and the Eleventh Amendment took effect in 1795. That was, of course, long before the 14th Amendment.

The Court in Nevada v Hall rejected the sovereign immunity claim of the state of Nevada which was based in the 11th Amendment. In essence the earlier court held to a notion that is typically a states rights argument - that the Eleventh Amendment only affected the power of federal courts to hear such cases and that

In the Hyatt case Thomas discusses extensively an originalist meaning of the doctrine of sovereign immunity. He points to Alexander Hamiton's on point discussion of that doctrine in Federalist No 81 from 1788 and what his understanding of it was. And Thomas relies on points to the Eleventh Amendment as controlling precedent as it was clearly intended to advance the doctrine of sovereign immunity.

Roe deals with an issue that was never directly considered by the Founders. Hamilton never addressed abortion in the Federalist Papers. No constitutional amendment was ever passed to specifically deal with that exact issue. As such there is little parallel reasoning from Hyatt that would apply to a challenge to Roe.

While Roe will surely be challenged again and again, the reasoning in Hyatt has no bearing on what the court may decide in such future challenge to Roe. There is nothing from the Hyatt decision that telegraphs that the court is any more ready to overturn Roe that it was previously.
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Old 05-15-2019, 09:37 AM
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The overall point I was trying to get across is that there was reasoning behind the ruling in Hyatt and that reasoning in would not apply to Roe.
Yes, this was already understood, and has nothing to do with why this ruling is seen as a warning sign for Roe.
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Old 05-15-2019, 10:16 AM
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The Roberts court actually overturns precedent at a much slower rate than its predecessors. A little over one a session unlike the Rehnquist court which overturned an average of about 2 per session and the Burger and Warren courts which overturned an average of a little over 3 per session.
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Old 05-15-2019, 10:27 AM
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The Roberts court actually overturns precedent at a much slower rate than its predecessors. A little over one a session unlike the Rehnquist court which overturned an average of about 2 per session and the Burger and Warren courts which overturned an average of a little over 3 per session.
Thanks, but those numbers are small enough not to be really statistically significant -- one vs. two? Plus, the Roberts court has changed significantly in the past two years -- Kennedy may have been a lot more resistant to overturning precedent than Gorsuch or Kavanaugh. So, history may not be that useful as a guide.

Anyway, do you have any comments on the current case, the majority's comments on precedent and the minority's seeming hair-on-fire comments on same?
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Old 05-15-2019, 10:42 AM
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I don't see Hyatt as any kind of future portent. There's a number of reasons to overturn precedent, and they are no different today than they were last week. Whether or not Hyatt satisfied those criteria is really independent of whether another case would in regard to Roe. I take it that the apparent willingness to overturn precedent is interpreted more broadly - that if the justices are willing to overturn this precedent, then what's to stop them from overturning others. I would say there are probably 3 solid votes on the court to overturn Roe, 4 definitely against, and 2 kinda on the fence.

But the court has always had this power, and they exercise it not very often. I read an analysis somewhere (I forget) that the average time a precedent stands before being overturned is like 60+ years. In any event, arguing against the concept of overturning precendent and not recognizing stare decisis is a question of whether you believe that in most matters it is more important that the applicable rule of law be settled than that it be settled right. That's how Brandeis characterized it in 1932.

Sometimes it's worth it to reexaming the current state of affairs and if we are a place that we would not be had we started from scratch, and are simply going down a path that seems like a fait accompli, then perhaps it's time to look at the law from first principles rather than stare decisis.




And as an aside from the OP - Heller didn't' overturn precedent.
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Old 05-15-2019, 12:22 PM
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I think both sides see the value of stare decisis as being by far the rule, with rare exceptions. It isn't just necessary for certainty and finality, but also for the stability and legitimacy of the entire legal system and rule of law. The more the judiciary is seen as acting on personal opinion and individual values or whims rather than on an adherence to legal precedents and principles, the less legitimacy it has, and the weaker the rule of law becomes. Why shouldn't that officer kick down random doors to look for contraband? Because it would be unconstitutional? Says who? Why shouldn't a molestation victim's mother find the perpetrator and kill him? Sure, vigilantism is illegal, but so is molestation, and this guy could get a lenient judge -- so why wouldn't the mother take him out, and then take her chances on getting the sympathetic judge or jury.

It is typical to talk up stare decisis when you are upholding a precedent and talk about when it has to give way when you are overturning one (which is still rare at this point). The NYT article is correct that the Hyatt opinion's discussion of stare decisis looks a lot like one could imagine in a decision overturning Roe. It is a line-drawing exercise to decide when stare decisis can or should give way. That doesn't make Hyatt "groundwork," it just makes it consistent with the typical practice, in my view.

It's a good time to start getting familiar with state constitutions, and looking at independent state constitutionalism.

Last edited by eschrodinger; 05-15-2019 at 12:26 PM.
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Old 05-15-2019, 12:23 PM
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Setting aside the merits/demerits of Roe (or any other SCOTUS decision for that matter,) stare decisis has no moral argument for it whatsoever. It's tantamount to saying, "We've been doing things the wrong way for a long time, so we should keep doing things the wrong way, because.......that's how it's been done." Every legal course should be decided on the basis of its merits or demerits, not because "that's how it has been done up to now."
In addition to what others have said, you also have to taken into account private and public expectations. Imagine if 5 justices on the Supreme Court looked at the Commerce Clause again, for example. And I am not talking about at the edges. Suppose you were one of the five.

Let's say that you studied the history, the Federalist Papers, and other documents and came to a definite and firm conclusion that the modern commerce clause jurisprudence is absolutely and unquestionably wrong. You believe that once goods or services have crossed state boundaries that interstate commerce is at an end and that the commerce clause no longer applies. How do you rule?

If you vote the "right" way, you will under over eighty years of federal regulation. The USDA, Civil Rights Laws, the EPA, Medicare, Social Security, all federal gun laws; the lists goes on almost infinitely.

Do you bring society to its knees and force it to start anew, or do you recognize some form of stare decisis for predictability in the law?
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Old 05-15-2019, 12:40 PM
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I'd like to discuss the recent SCOTUS decision in Franchise Tax Board of California v. Hyatt, which I will call Hyatt, and the possible implications for Roe v Wade. In this NY Times op-ed (https://www.nytimes.com/2019/05/13/o...eme-court.html), the author argues that the conservatives on the court went out of their way to de-emphasize stare decisis, and she sees that as laying the groundwork for overturning Roe. The liberal wing's collective heads exploded at the overturning of a long-time precedent for seeming no other reason than that the majority thought it was wrongly decided. I believe that's unusual, especially for a precedent that has been around for decades.

I'm not a lawyer. My impression is that SCOTUS talk about stare decisis, but they seem to routinely overturn precedent. Overturning sections of the voting rights act and Heller spring to mind, but that's just my liberal bias showing. I don't want to argue about those.

My assumption has been that the conservative wing would have no issue overturning Roe, especially now that Kennedy is gone. I think they came pretty close in Casey -- I think that was essentially 5-4, but the wiki article talks about plurality throughout. If stare decisis had been an important concept, then it should have been 9-0.

Anyway, has anyone here read the Hyatt decision or any of the writing about it? Is the writer correct that the conservative wing is setting the stage for overturning Roe? My view is that they would have been fine overturning it without setting the stage here, but I'm happy to be convinced otherwise. Does the wording in this decision really indicate a change in their opinion of stare decisis?

I'm really hoping we can avoid debating the morality and ethics of abortion and stick to the legal issues. Pretty please?
Was Breyer outraged at himself when he voted with the majority in Lawrence v. Texas which outlawed sodomy laws instead of applying stare decisis and upholding those laws under Bowers v. Hardwick? Or in Obergefell when he did not apply stare decisis to Baker v. Nelson? Those were laws of national important. I'm sure that if we read the New York Times after those opinions, they were appalled at the flouting of stare decisis then.

In contrast, Nevada v. Hall was the only case in history where this doctrine was even challenged and IIRC only 3 of these types of suits have even been filed, let alone reached in the Supreme Court in the forty years since. IOW, it is really a non-issue, and a type of case where instead of continuing down a wrong path, let's get it right.
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Old 05-15-2019, 01:11 PM
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Sorry for the triple post, but I believe that in this case, the prior precedent was unquestionably wrong. The justification was that states are sovereign in their relations with each other just like nations.

Under the international norms at the time of the founding any nation had the power (after all, it had no superior) to allow suits against another nation in its courts. To friendly nations, they generally extended comity and refused to allow these suits in its courts, but it still could.

Likewise, the Hall Court reasoned, a sovereign state had the power to allow these suits against another state in its courts.

But as Thomas correctly pointed out, this analysis misses the other half. If a nation did not extend that comity and allowed these suits against another nation in its courts, the second nation had the options of declaring war, cutting off relations, establishing a trade embargo or taking other actions against the first nation. Under our federal system those are neither desirable nor are they options for an offended state under the Constitution.

States simply do not have the equivalent sovereignty of nations and an analogy between the two is erroneous, and is wholly inconsistent with the cooperative framework setup by the Constitution.

None of this has anything to do with abortion and Breyer simply threw a bomb into his dissent by even mentioning it.

Last edited by UltraVires; 05-15-2019 at 01:12 PM.
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Old 05-15-2019, 01:30 PM
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There seems to be a little bit of conceptual misunderstanding in this thread.

There are two levels of precedent being discussed here. One is the precedent about sovereign immunity overruled in Hyatt. The other is the precedent about precedent implicated by that overruling. (Technically, stare decisis and precedent are slightly different, but close enough.)

To make matters even more complicated, the lead precedent about precedent is...drum roll...Planned Parenthood v. Casey (aka Roe in popular parlance, since that doctrine is most recently embodied and modified by Casey).

The argument being made about Hyatt is that the decision to overrule Hall is inconsistent with Casey. As you might imagine, one of the factors in deciding whether to overrule precedent is whether it is wrong. But there are several other factors. It is the presence or absence of those factors in Hyatt that leads to concern that it bodes poorly for the Court's willingness to follow precedent when it comes to other law they think is wrong.

Last edited by Richard Parker; 05-15-2019 at 01:31 PM.
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Old 05-15-2019, 01:40 PM
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This is a decent article on the precedent about precedent aspect:

Quote:
Consequently,when deciding whether to overrule a precedent interpreting the Constitution, the Court has historically considered several“prudential and pragmatic” factors that seek to foster the rule of law while balancing the costs and benefits to society of
reaffirming or overruling a prior holding:

Quality of Reasoning. When determining whether to reaffirm or overrule a prior decision, the Supreme Court may consider
the quality of the decision’s reasoning.
Workability. Another factor that the Supreme Court may consider when determining whether to overrule a precedent is
whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus
“unworkable.”
Inconsistency with Related Decisions. A third factor the Supreme Court may consider is whether the precedent departs from
the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by
later decisions or because the precedent is a recent outlier when compared to other decisions.
Changed Understanding of Relevant Facts. The Supreme Court has also indicated that changes in how the Justices and
society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule
it.
Reliance. Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling
the decision would injure individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial
branch officers, who had relied on the decision.
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Old 05-15-2019, 02:01 PM
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Was Breyer outraged at himself when he voted with the majority in Lawrence v. Texas which outlawed sodomy laws instead of applying stare decisis and upholding those laws under Bowers v. Hardwick? Or in Obergefell when he did not apply stare decisis to Baker v. Nelson? Those were laws of national important. I'm sure that if we read the New York Times after those opinions, they were appalled at the flouting of stare decisis then.

....
Well, I'm not the lawyer, you are. Did Breyer (or anyone in the majority) discuss why they were overturning precedent? It was pretty recent precedent in those cases, so I'd be surprised if they didn't. Did they do the type of analysis that they claim went wrong in the Hyatt case? (These are genuine questions -- I'd be surprised if any justice seemed just completely arbitrary -- they usually have at least some sort of fig leaf about why this time is different)

I don't recall what op-eds the NY Times included when those opinions were issued, and I'm not really interested in discussing that. I don't see how it has any relevance to this discussion.
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Old 05-15-2019, 02:15 PM
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I am not at all confident that either Roberts and especially the current pair of Trump appointees is going to demonstrate a great deal of respect for stare decisis if it suits their ideology to do otherwise. And this could be very, very bad.

It's not just Roe v Wade but a whole swath of social and other legislation that's been narrowly decided in recent times, like gay rights and the ACA itself.

Consider, for example, United States v. Windsor. Although Obergefell v. Hodges is generally seen as "the" landmark case for gay rights, Windsor was at least as significant if not more so. Both cases were decided 5-4 with Stevens as the swing vote and Roberts dissenting. Windsor was noteworthy for Stevens' eloquent and compassionate ruling:
DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
https://en.wikipedia.org/wiki/United_States_v._Windsor
As for the dissent, which likely would now be the majority, some of it was vicious, mean, and mendacious. Laurence Tribe, a professor of constitutional law at Harvard Law School, was especially critical of Scalia: "[he] described Scalia's response and dissent as 'intemperate', 'extraordinary', and 'at the very least, an exercise in jurisprudential cynicism'. He considered that Scalia appeared to have been unable to resist "the temptation to use the occasion to insult the Court's majority, and Justice Kennedy in particular, in essentially ad hominem ... terms'."

Of course Scalia is no longer with us, but he's been replaced by a Bible-thumping evangelical nutcase, and Kennedy by a far-right drunken misogynist and would-be rapist who wears his extremist ideology on his sleeve. There is some finite risk here of undoing many decades of social progress were there to be an opportunity to overrule or undermine these decisions.
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Old 05-15-2019, 02:50 PM
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Well, I'm not the lawyer, you are. Did Breyer (or anyone in the majority) discuss why they were overturning precedent? It was pretty recent precedent in those cases, so I'd be surprised if they didn't. Did they do the type of analysis that they claim went wrong in the Hyatt case? (These are genuine questions -- I'd be surprised if any justice seemed just completely arbitrary -- they usually have at least some sort of fig leaf about why this time is different)

I don't recall what op-eds the NY Times included when those opinions were issued, and I'm not really interested in discussing that. I don't see how it has any relevance to this discussion.
Well, the problem with applying stare decisis comes from individual proclivities of judges, even if they are trying to apply reasonable standards. Take Bone's factors above and apply them to Roe/Casey:

1) Quality of Reasoning.

Breyer would say that Roe/Casey were well reasoned, but Thomas/Gorsuch would say that they are awful.


2) Workability.

Breyer would say that abortion jurisprudence is very workable. Simply do not put undue burdens on women seeking abortions.

Thomas/Gorsuch would say that it is unworkable due to abortion cases coming up every year despite Roe's nearly 50 year history. States are unsure about admitting requirements, waiting periods, how many weeks gestation is okay and judges split all over the place about them.


3) Inconsistency with Related Decisions.

Breyer would say that Roe is consistent with Griswold, Loving, Obergefell and all of the right to privacy determinations.

Thomas/Gorsuch would say that Roe is inconsistent with even Casey, Webster, the partial birth abortion cases, and the other body of law that allows states leeway in their police powers.


4) Changed Understanding of Relevant Facts.

Breyer: No change.

Thomas/Gorsuch: Modern medical science has undermined the holding of Roe in that Roe was too focused on the woman's right to abortion instead of the living organism inside of her which we can observe more clearly with modern technology.

5) Reliance.

Breyer: Millions of women have grown up in a society where they believed and structured their sexual lives around a regime where abortion was a guaranteed constitutional right and have relied on Roe.

Thomas/Gorsuch: Nonsense. All overruling Roe would do is return the issue to the states where women could convince the legislature to keep abortion legal. If the legislature outlawed it, then women would either have to use birth control or travel to other states where abortion is legal.


So, to bootstrap off of Richard Parker, we don't just have a debate about the precedence of precedence. We have a debate on the facts underlying the factors which decide the precedence of precedence.
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Old 05-15-2019, 03:36 PM
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Here's a National Review article anticipating the Lawrence v. Texas decision, and hand wringing about how the liberals will be approaching stare decisis there vs how the conservative case stacks up for overturning Roe.

https://www.nationalreview.com/2003/...d-lessner/amp/
  #26  
Old 05-15-2019, 04:52 PM
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Setting aside the merits/demerits of Roe (or any other SCOTUS decision for that matter,) stare decisis has no moral argument for it whatsoever. It's tantamount to saying, "We've been doing things the wrong way for a long time, so we should keep doing things the wrong way, because.......that's how it's been done." Every legal course should be decided on the basis of its merits or demerits, not because "that's how it has been done up to now."
There's a bit more to it than that. In Kuhn v. Flood, the Court literally said "we were absolutely wrong about this but we're going to stick with out decision." In most cases, the Court will undo precedent when necessary, based on the five-part test quoted by others.

I'm not hugely concerned about what Hyatt says about Roe. Hyatt involved a relatively unusual scenario and there isn't a whole lot of public policy or private activity which depends on the underlying precedent.

Nor do I think it's very useful to compare the Roberts court to earlier iterations, since it has much less opportunity to depart from wrongly decided cases than earlier courts.
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Old 05-16-2019, 06:14 AM
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...

I'm not hugely concerned about what Hyatt says about Roe. Hyatt involved a relatively unusual scenario and there isn't a whole lot of public policy or private activity which depends on the underlying precedent....
Agreed. I read that cases of the type that occurred in Hyatt have be raised 14 times in 40 years. That precedent was not heavily relied upon.

Another instance of precedent being overturned was in the 2018 decision in South Dakota v Wayfair Inc.. Wayfair overturned the 1992 ruling in Quill Corp v North Dakota which had held that a state cannot compel a business to collect sales tax if that business does not have a physical presence in that state.

Quill Corp was a decision that affected major sectors of the economy and many millions of transactions as more and more commerce moved to e-commerce retailers. Huge and rapidly growing sectors of the economy relied upon that decision.

Wayfair was authored by Kennedy, with Thomas, Ginsburg, Alito,and Gorsuch joining the majority opinion. Roberts filed a dissent that was joined by Breyer, Sotomayor, and Kagan. Did Ginsburg have no respect for stare decisis!? Does that mean she is going to vote to overturn Roe?

Last edited by Iggy; 05-16-2019 at 06:14 AM.
  #28  
Old 05-16-2019, 09:23 AM
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Wayfair's substantially distinguishable, since there was very clearly a "changed understanding of relevant facts" in that ecommerce basically didn't exist at the time of Quill.
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Old 05-16-2019, 10:26 AM
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Thanks, but those numbers are small enough not to be really statistically significant -- one vs. two? Plus, the Roberts court has changed significantly in the past two years -- Kennedy may have been a lot more resistant to overturning precedent than Gorsuch or Kavanaugh. So, history may not be that useful as a guide.

Anyway, do you have any comments on the current case, the majority's comments on precedent and the minority's seeming hair-on-fire comments on same?
I am not going to do a ptest on it but the other courts overturned precedents at a double or triple rate the Roberts court does, that seems a significant change, perhaps not statistically but still a change.

The purpose of the Supreme Court is to give guidance to lower courts and the government as to what is and is not constitutional. A good decision lets people know what can be done and what can not. A bad decision keeps people guessing as to what is and is not legal. A speed limit of 55 is a good law and a speed limit of drive safely is a bad law.

Wrongly decided cases fall into two camps, wrong but working and wrong and controversial. I think the Miranda decision was wrong because it is possible for a defendant to freely confess without a miranda warning. However it is working because it gives cops an easy way to tell if a confession is freely given or not and it has been incorporated into police procedures in a workable way. So Miranda should not be overturned.

Current abortion law is that states may not pass laws that constitute an undue burden on the right to an abortion. What constitutes undue burden is different for everybody and so whenever the Supreme Court gets a new member the law changes. This is untenable. Likewise the right to privacy is incoherent there is no reason to think it covers abortion but not heroin use. Roe v Wade should be overturned.
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Old 05-16-2019, 01:13 PM
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Wayfair's substantially distinguishable, since there was very clearly a "changed understanding of relevant facts" in that ecommerce basically didn't exist at the time of Quill.
And there is where the debate comes in. Why is it relevant that more commerce is now being done interstate than in 1992? The ruling was that a state could only tax businesses physically located in their jurisdiction because that was what the law said the extent of the taxing power was.

This wasn't a policy choice, it was based upon constitutional principles the Dormant Commerce Clause and allowing states to impose these taxes would infringe upon interstate commerce. Why should that change because of an emerging technology? If anything the states are now allowed to infringe on even more interstate commerce. Does the Constitution say one thing if only a few people do something, but when more people do it, the text or the meaning changes?

Couldn't it equally be argued that states should alter their tax structures in response to this change? For example, not rely so heavily on sales taxes (if at all) so that brick and mortar stores were not put at a disadvantage?
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Old 05-17-2019, 09:40 AM
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This wasn't a policy choice, it was based upon constitutional principles the Dormant Commerce Clause and allowing states to impose these taxes would infringe upon interstate commerce. Why should that change because of an emerging technology? If anything the states are now allowed to infringe on even more interstate commerce. Does the Constitution say one thing if only a few people do something, but when more people do it, the text or the meaning changes?
That's an oversimplification. It was based on an analysis of the burden that would be imposed by states taxing mail order purchases. It was much harder for retailers to collect state sales taxes on mail order shipments in 1992 than it was in 2018.
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Old 05-18-2019, 04:39 PM
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I am not at all confident that either Roberts and especially the current pair of Trump appointees is going to demonstrate a great deal of respect for stare decisis if it suits their ideology to do otherwise. And this could be very, very bad.

It's not just Roe v Wade but a whole swath of social and other legislation that's been narrowly decided in recent times, like gay rights and the ACA itself.

Consider, for example, United States v. Windsor. Although Obergefell v. Hodges is generally seen as "the" landmark case for gay rights, Windsor was at least as significant if not more so. Both cases were decided 5-4 with Stevens as the swing vote and Roberts dissenting. Windsor was noteworthy for Stevens' eloquent and compassionate ruling:
DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
https://en.wikipedia.org/wiki/United_States_v._Windsor
As for the dissent, which likely would now be the majority, some of it was vicious, mean, and mendacious. Laurence Tribe, a professor of constitutional law at Harvard Law School, was especially critical of Scalia: "[he] described Scalia's response and dissent as 'intemperate', 'extraordinary', and 'at the very least, an exercise in jurisprudential cynicism'. He considered that Scalia appeared to have been unable to resist "the temptation to use the occasion to insult the Court's majority, and Justice Kennedy in particular, in essentially ad hominem ... terms'."

Of course Scalia is no longer with us, but he's been replaced by a Bible-thumping evangelical nutcase, and Kennedy by a far-right drunken misogynist and would-be rapist who wears his extremist ideology on his sleeve. There is some finite risk here of undoing many decades of social progress were there to be an opportunity to overrule or undermine these decisions.
I wanted to come back to this in view of a recent news story. The short version is that a gay couple, both American citizens, had a baby via surrogate mother who happened to be Canadian. In circumstances where a heterosexual couple would automatically have had US citizenship conferred on the baby, this baby and its entire family are getting a great big "fuck you" from the Trump administration.

The couple say they will file legal action when they get the official letter of denial. The State Department will no doubt appeal, and since the last I checked the US government was not short of high-priced lawyers, this could very well end up being heard by the Supreme Court, which of course now includes the two newly appointed far-right lunatics forming a coalition with the other three.

The point here is that even if stare decisis is maintained on Windsor and Obergefell, there is lots of opportunity for wingnuts to continue cruel and discriminatory policies, and this can be taken as a model for other social policy rollbacks. I fear that the Trump legacy will be around doing damage to the social fabric for a long time yet to come.
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Old 05-18-2019, 06:56 PM
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I wanted to come back to this in view of a recent news story. The short version is that a gay couple, both American citizens, had a baby via surrogate mother who happened to be Canadian. In circumstances where a heterosexual couple would automatically have had US citizenship conferred on the baby, this baby and its entire family are getting a great big "fuck you" from the Trump administration. ...
Earlier thread.

While the couple certainly allege that a similarly situated straight couple would be treated differently that is not my experience in dealing with immigration issues related to children born abroad via assisted reproductive techniques. In short, US immigration law follows the DNA in the absence of a legal adoption.
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Old 05-18-2019, 07:28 PM
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Thanks, I wasn't aware of the case in the other thread or of the existence of the other thread, but I read through it, and the consensus there was that gay couples tend to find themselves being discriminated against more often in these situations, even if that wasn't the outcome in your OP in that thread.

My point, in any case, was to raise the question of how this case would fare if this couple got a favorable ruling and then on appeal it escalated to the Supreme Court, given the current makeup of the court.
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Old 05-18-2019, 09:19 PM
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Stare decisis swings both ways. I understand the court does not want to whipsaw from one position to another and should give weight to precedent but I see no reason why they should respect a shitty decision just because it was made years ago.

There are lots of bad Supreme Court decisions. Some overturned, some still in effect. Should something like Citizen's United be allowed to continue forever because five people at one moment in history said it was a good idea?

I agree the court should be cautious about overturning precedent and give it careful thought but there is nothing magical about it and a bad decision can and should be overturned.

I say this knowing the current crop will gleefully do so. I also hope that, down the road, we can gleefully undo their malicious and terrible decisions.
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Old 05-19-2019, 07:02 PM
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The Abortion Fight and the Pretense of Precedent

"State legislators have proposed Draconian new laws on the assumption that, when they come before the Supreme Court, they will be used to vanquish Roe v. Wade once and for all."
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