Precedent and the Roberts court

What weight will the Roberts court give to precedent? No issue is more important for the future of issues such as abortion rights, affirmative action, and gay and lesbian rights. And the initial answers could not be more discouraging for those who pin their hopes on the Roberts court caring about stare decisis.

On May 13, the Supreme Court, in Franchise Tax Board v. Hyatt, overruled a 40-year-old precedent and held that state governments cannot be sued in the courts of other states. I should disclose at the outset that I was the attorney for the respondent, Gilbert Hyatt, and argued the case for him in the Supreme Court.

In 1979, in Nevada v. Hall, the Supreme Court ruled that a state government can be sued in another state's courts. The Supreme Court stressed that a state has a sovereign interest in providing a remedy for its citizens when they are injured, including by another state. The court reviewed the history before the ratification of the Constitution and found that history, "supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign."

Gilbert Hyatt moved from California to Nevada in 1991. Some employees of the Franchise Tax Board believed it was a sham and that he had not actually moved to Nevada. They went after him with a vengeance. They went to Nevada and broke into his house. They spread private information about him to a large number of people. They defamed him. Ultimately, after decades of delay, Hyatt prevailed in the tax proceedings with a conclusion that, in fact, he had moved to Nevada.

Hyatt sued the Franchise Tax Board in Nevada state trial court. A jury awarded him $389 million in damages, reflecting its perception of the egregiousness of the conduct of the employees of the Franchise Tax Board. After years of litigation, the judgment had been reduced to $100,000. But last month the Supreme Court reversed that, overruling Nevada v. Hall.

Nothing in the text of the Constitution says a word about whether a state can be sued in another state's court. Justice Clarence Thomas, writing for the five conservative justices, rejected what he called "ahistorical literalism." There was no discussion at the Constitutional Convention or in the state ratifying conventions about the ability to sue a state in another state's courts. But the Supreme Court said that history supported the view that states were accorded sovereign immunity and could not be sued in any forum.

What about stare decisis? The Supreme Court said that "stare decisis is not an inexorable command 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.'" The court acknowledged the unfairness to Hyatt, but said it doesn't matter: "Because of our decision to overrule Hall, Hyatt unfortunately will suffer the loss of two decades of litigation expenses and a final judgment against the Board for its egregious conduct. But in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below."

What is troubling is that nothing had changed since 1979 when Nevada v. Hall was decided other than the composition of the Supreme Court. All of the arguments made in 2019 were the same as had been presented in 1979. This was nothing more than the current majority of the justices agreeing with the dissenters from the earlier case. Justice Stephen Breyer powerfully made this point in his dissent. He wrote: "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.' 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 Hall even 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."

This is not the only recent case of the Roberts court that causes one to wonder about that. At the end of last term, in Janus v. American Federation, the court overruled a 41-year-old precedent, Abood v. Detroit Bd. of Ed. In Abood, the court held that non-union members can be required to pay the share of the union dues that go to support the collective bargaining activities of the union. The court explained that non-union members benefit from collective bargaining in their wages, hours and their working conditions, and that they should not be able to be free riders.

In Janus, the court, again dividing 5-4 along ideological lines, overruled Abood. Justice Samuel Alito again brushed aside concerns about stare decisis. Once more, the court repeated that stare decisis is not an "inexorable command" and it is at its weakest in constitutional cases. Justice Elena Kagan, joined by the other three liberal justices, wrote a vehement dissent and declared: "Rarely if ever has the Court overruled a decision -- let alone one of this import -- with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today."

It is just a matter of time before the Supreme Court reconsiders precedents in the most controversial areas of constitutional law, like abortion, affirmative action and gay and lesbian rights. The five conservative justices have shown that precedent matters little to them when they disagree with it. Justice Breyer is right in wondering what precedents the court will overrule next. 