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/opinion/roe-supreme-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?
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.
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 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.
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:
*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.
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.
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?
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.
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.
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.
That wades into the area of ex post facto laws which are unconstitutional.
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.
The Roberts court actually overturns precedent at a much slower ratethan 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?
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.
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.
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?
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.
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.
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.