Liberals Who Cry Roe An obscure case over state sovereignty triggers a Supreme Court exchange over precedent.
https://www.wsj.com/articles/liberals-who-cry-roe-11557876134
Who would have thought that a Supreme Court ruling in an interstate tax dispute would devolve into a brawl over abortion politics? Such are our political times as the four liberal Justices on Monday chided their conservative colleagues for overturning a 40-year precedent, which progressives warn will create a stare decisis slippery slope to banning abortion.
At issue in Franchise Tax Board v. Hyatt was whether states enjoy sovereign immunity in other states’ courts. California urged the Court to overturn its Nevada v. Hall (1979) precedent, which held that states aren’t required to grant legal immunity to other states. Most do for comity purposes, and state courts have entertained only 14 cases by private citizens against other states in the past four decades.
The Court reasoned in Hall that states have a sovereign interest in protecting their citizens, and the Constitution doesn’t explicitly require interstate sovereign immunity. But there are strong opposing constitutional arguments, which Justice Clarence Thomas explained in the 5-4 majority’s opinion overturning Hall.
The Constitution “embeds interstate sovereign immunity” in its structure and design, Justice Thomas asserts. For example, states are required to afford citizens of each state “all Privileges and Immunities of Citizens in the several States.” While interstate sovereign immunity isn’t spelled out, the founders “took as given that States could not be haled involuntarily before each other’s courts.” In other words, conservatives aren’t simply divining a constitutional penumbra.
The Hyatt case is a close call because originalist arguments swing both ways. “When a citizen brings suit against one State in the courts of another, both States have strong sovereignty-based interests,” Justice Stephen Breyer observed in his dissent joined by his fellow liberals. Respect for stare decisis also cautions against overturning precedents willy-nilly.
And here is where the real legal fight broke out. Justice Thomas defended the toppling of Nevada v. Hall by noting that stare decisis is not “an inexorable command” and “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.” The Court may overrule a precedent if a majority believes earlier Justices committed a constitutional error and there aren’t significant interests that rely on the precedent. If the Court didn’t sometimes fix its mistakes, bathrooms and schools would still be segregated. States would be prohibited from setting a minimum wage.
Yet the liberal Justices warn that conservatives by overturning Hall will “encourage litigants to seek to overrule other cases.” Citing Planned Parenthood v. Casey (1992) upholding abortion rights, Justice Breyer writes that stare decisis should be followed except in cases “when it ‘def[ies] practical workability” or “facts have so changed.”
“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,” Justice Breyer warns. “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.
Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.
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As for stare decisis, liberals would have more credibility if they didn’t so often disregard precedents they oppose. In his McDonald gun-rights dissent in 2010, Justice Breyer cavilled that “since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed.” Yet McDonald was merely a case incorporating the Heller ruling to the states, as the Court has done for the other amendments in the Bill of Rights.
Who doubts liberals would overturn Heller, Citizens United on free speech and many other precedents they oppose if they had a majority? Precedents should be overturned on their legal merits, not the politics of the day.
Appeared in the May 15, 2019, print edition.
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