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The United States Law Week

Court Overturns Precedent, Raising Concern Over What’s Next (2)

May 13, 2019, 2:24 PMUpdated: May 13, 2019, 7:51 PM

A divided U.S. Supreme Court jettisoned a 40-year-old ruling May 13, raising concerns about the future of other long-standing precedents.

The “decision can only cause one to wonder which cases the Court will overrule next,” Justice Stephen Breyer wrote in dissent.

The case here involved a decades-old ruling allowing states to be hauled into the courts of other states.

But the reasoning of the decision could reverberate well beyond the reach of state courts to include the viability of the court’s abortion protections and the authority of administrative agencies.

A decision overturning court protections for abortion and other controversial conservative targets was feared by liberal court watchers when conservatives fortified their majority with Justice Brett Kavanaugh.

The ruling split the justices along ideological lines, with the court’s conservatives voting to overrule the precedent.

“The division between the five-justice conservative majority and four-justice liberal dissent can be seen as a potential preview of the role of stare decisis as to other constitutional precedents,” said Tim Droske, of Dorsey & Whitney’s appellate group.

Justice Clarence Thomas’s “summary of the majority’s justification for its holding could readily be adapted by the conservative majority to other precedents,” Droske said.

Thomas wrote that the court’s earlier ruling was “irreconcilable with our constitutional structure,” and that stare decisis—the legal doctrine that courts should generally stand by earlier rulings even if they disagree with them— is “not an inexorable command.”

Breyer called the court’s willingness to overturn the earlier decision “only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question” dangerous.

The decision comes as the justices are currently considering whether to take up several challenges to Indiana’s strict anti-abortion law. Indiana is one of many states to recently enact stringent abortion restrictions—presumably to test the newly reconstituted Supreme Court’s abortion stances.

Breyer specifically cited to the court’s abortion jurisprudence in his dissent, criticizing the majority’s unwillingness to stand by its earlier decision.

The court is also considering whether the undo longtime doctrines giving agencies the authority to interpret ambiguous laws.

“Breyer’s dissent is a red alert that no Court precedent, however many decades old, is safe,” said Brian Fallon, of the progressive group Demand Justice.

Increased Workload

The court’s latest decision overturning precedent prohibits a California agency from being sued in Nevada state courts in a more than two-decades old tax dispute that’s already been up to the Supreme Court twice before.

Gilbert Hyatt initially obtained a nearly half-a-billion-dollar judgment against the state agency for torts committed during a tax audit. The judgment was subsequently drastically reduced and it was completely wiped out with the Supreme Court’s ruling.

In doing so, Thomas said that the founding generation “took as given that States could not be haled involuntarily before each other’s courts.” Thomas was joined by Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

“Stare decisis does not compel continued adherence” to “erroneous precedent,” Thomas said.

While the decision comes in a tax case, the ruling will apply to all cases against states alleged to have engaged in wrongdoing, said tax attorney Jennifer Karpchuk, at Chamberlain Hrdlicka.

It will now be up to states to seek redress on behalf of their citizens, Karpchuk said.

While this already happens on a limited basis, it could pick up following the Supreme Court’s decision, she said.

Noting that the Supreme Court has “original jurisdiction” in such suits—meaning that it acts as a trial court in disputes between two states—Karpchuk said the justices may have just inadvertently increased their own workload.

Here to Stay?

Breyer, however, noted that cases brought against states in another state’s courts doesn’t happen all that frequently.

Those challenging the earlier ruling only identified “14 cases in 40 years in which one State has entertained a private citizen’s suit against another State in its courts,” Breyer said.

Those numbers show that the earlier rulings hasn’t proved to be unworkable, and therefore that the court had no “special justification” for overruling its earlier opinion.

“Each time the Court overrules a case, the Court produces increased uncertainty,” and causes “the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay,” Breyer said.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Breyer’s dissent.

The case is Franchise Tax Bd. of Cal. v. Hyatt, U.S., No. 17-1299, 5/13/19.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com