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Wednesday, January 23, 2019

Nevada v. Hall and Intergenerational Legal Change

Nevada v. Hall is a decades-old sovereign immunity precedent that the Supreme Court nearly overruled several years ago, before Justice Scalia passed away. Now that the Court is back to full size, the question of whether to overrule Hall is again before the Court, and it seems likely that—once again—a conservative majority is inclined to answer yes. From one standpoint, that outcome is unsurprising: Hall has been a target of conservative critics for many years. Yet there seems to be a generational shift afoot: younger conservatives seem much more likely to think that Hall came out the right way. That apparent generational divide could shed light on Hall’s fate, as well as on broader trends in precedential change.

By way of background, Hall is a 1979 case that stands for the proposition that states lack sovereign immunity in one another’s courts. The 6-3 ruling in Hall provoked a dissent by then-Justice William Rehnquist, who would go on to lead the Court to a series of decisions that strengthened state sovereign immunity. For many years, the conventional wisdom has been that Hall is in tension with the later Rehnquist Court cases on state sovereign immunity. And conservatives have generally opposed Hall. The justices’ recent behavior supports that view: the five conservative justices seemed prepared to overrule Hall in the 2016 iteration of Franchise Tax Board of California v. Hyatt, which ultimately split 4-4 on that issue. And this month’s oral argument in the latest iteration of Hyatt also supports that impression, as all three conservatives who spoke seemed to think that Hall was wrong.

Recently, however, a number of relatively young conservative thinkers have supported Hall. Will Baude and Steve Sachs are the most salient examples, as they have defended Hall in both scholarly articles and an amicus brief that earned airtime during the latest Hyatt oral argument. But they're not alone. And while some of Hall’s newfound supporters on the right are following Baude and Sachs’s lead, others have come to their view independently. Moreover, the perceived appeal of the Baude / Sachs approach is related to larger changes in conservative thinking: as new methods and types of arguments become popular, so too do new legal positions.

Based on my own admittedly anecdotal experiences, my strong impression—shared by others I have asked—is that conservatives who have formulated a view on the issue and are under 40 years old (or so) are much more likely than their older counterparts to support Hall’s outcome. If there is indeed this generational divide among conservatives, what could explain it? There are many possibilities, but I’ll suggest two.

First, Hyatt may be exposing a deeper and broader generational divide in conservative thinking. When the Court decided Hall, supporters of state sovereign immunity were quite willing to embrace structural reasoning divorced from both constitutional text and the legal doctrines actually recognized in the founding era. For example, the lead dissent in Hall (authored by Justice Blackmun) argued that the source of state sovereign immunity lies “not in an express provision of the Constitution but in a guarantee that is implied as an essential component of federalism.” And Rehnquist’s separate dissent relied on “the implicit ordering of relationships within the federal system” and “the logic of the constitutional scheme.” By contrast, more recent conservative thinking is much more grounded in text and in preexisting or “background” legal principles. That newer approach emphasizes the Necessary and Proper Clause and the Tenth Amendment, which effected limited changes to preexisting law. But while those constitutional provisions provide support for Rehnquist Court rulings limiting federal power, they afford no basis for limiting the authority of state judiciaries.

Second, the doctrinal and strategic significance of Hall may have changed over time, causing different generations of conservatives to view the case differently. When it was decided, Hall’s reasoning portended further limitations on state sovereign immunity—as the lead dissent grimly complained. And during the 1980s and 90s, Hall did indeed offer some precedential support for liberal defenders of federal encroachments on state sovereign immunity. But the conservatives generally won the skirmishes that followed, as the Court ruled in favor of state sovereign immunity in Seminole Tribe (1996) and Alden (1999). Further, Alden distinguished Hall by recasting it in a way that limited its future ramifications. So conservatives who have grown up in the law after 2000 never had much to fear from Hall—and also haven’t had to litigate against it. Grizzled jurisprudential warriors, by contrast, may have a more vivid, and possibly outdated, sense of what preserving Hall means for the federal-state balance.

One might expect that older conservatives, including the justices, might update their views to appeal to new, trendier intellectual currents. And maybe they will—Justice Gorsuch after all was silent during the Hyatt oral argument, and other conservatives did raise textualist concerns. But no such updating occurred during Hyatt’s last visit to the Court, and it may not happen now either. Old habits, as the adage goes, are hard to break. Further, the justices can decide relatively technical issues like this one without worrying too much about suffering a reputational loss. In fact, the generational divide on this topic could be viewed as a bit academic. Even as they reject state sovereign immunity in cases like Hyatt, salient expositors of the new conservative thinking would also severely curtail the enforceability of any judgment obtained against an unconsenting state. So both old and new approaches are actually united in generally denying relief to plaintiffs like Hyatt. Representatives of the “old” way of thinking might therefore see the newer view as little more than a roundabout path to essentially the same destination.

More broadly, Hyatt offers an interesting perspective on the nature of ideological lag at the Court. Commentators often say that the justices tend toward the ideologies that reigned when they were appointed. But it might sometimes be more accurate to say that the justices are inclined toward the ideological views that prevailed twenty to thirty years earlier—when the justices were solidifying their legal views.

Posted by Richard M. Re on January 23, 2019 at 09:30 AM | Permalink


I think the reason young democrats (who oppose RAV and Tam) call themselves 'liberals' is because they've never heard someone like Cortez call herself a 'progressive'.

Whereas young republicans call themselves 'libertarians' because they actually hear pro-gun republicans use that term rather than 'conservative'. Though recently they just call themselves 'classical' liberals, to distinguish themselves from 'impressionist' liberals--people who think the constitution says whatever their first impression of it is, rather than the original public understanding.

Posted by: IngSoc | Jan 24, 2019 2:50:31 AM

"Young liberals, the most high profile issue is whether the free speech analysis should be content neutral (the old guard) or should consider power differentials (the young position)."

I think people who oppose R.A.V. and Tam call themselves 'progressives', not 'liberals' to distinguish themselves as a separate ideology--
in the same way that anti-gun republicans call themselves 'conservatives' to distinguish themselves from 'libertarians'.

Posted by: Josephus Roganite | Jan 24, 2019 2:29:56 AM

Marty, Many thanks as usual for these remarks, and sorry it's taken me a while to respond. A few brief comments for now.

First, you ask about older conservative critiques of Hall and express skepticism that conservatives are enthusiastic about state sovereign immunity. Again drawing partly on my own anecdotal experiences, I think there is a lot of conservative support for Seminole Tribe and Alden as well as hostility to Hall. And (in response to Asher) I include in that assessment both scholars and sophisticated practitioners. For topical examples that are public (and so scholarly), I would point to Ann Woolhandler's critique of Hall and to the pro-petitioner scholarly amicus brief in Hyatt.

Second, you suggest that the textualist/historical turn I identify in the younger generation should lead that generation to disfavor a host of important conservative doctrines. And then you acknowledge that Will and Steve, examples of the newer way of thinking, do in fact criticize some of those doctrines. I would just add that the reasoning of a number of these rulings could be recast and updated w/o rejecting the result or entire doctrine. Shelby County, which you list, is a prime example, as there are of course more textualist approaches to that basic result.

Stepping back a bit, part of your point has to do with what does and doesn't qualify as the "lifeblood of, e.g., Federalist Society confabs." I think this is an important and helpful distinction. The high-salience issues that are the "lifeblood" of conservative (and liberal) organizations could impose side-constraints on what methods can become attractive. But once a new or newly refined method takes hold, it can have significant effects on low-salience issues. I think that that dynamic would play out in Hyatt, if the new generation had time to influence the Court's views.

Thanks the other commentators as well!

Posted by: Richard | Jan 24, 2019 12:12:51 AM

re: Young liberals, the most high profile issue is whether the free speech analysis should be content neutral (the old guard) or should consider power differentials (the young position). It seems impossible to believe the current ACLU would bring the Skokie-Nazi case today.

--Unfortunately, young progressives are increasingly hostile to free speech, which they view as synonymous with racist hate speech. Speech that impugns marginalized persons is not speech at all, in their view, but violence. This is why a student Black Lives Matter group shut down an ACLU event at the College of William & Mary last year, chanting "liberalism is white supremacy" and "the revolution will not uphold the Constitution."--

Posted by: Mont Revard | Jan 23, 2019 1:47:24 PM

For what it's worth, John Manning in his Fed Courts class (which is the most in-demand section and has ~80 of the ~120 students go on to clerk) focuses extensively on the text/history of the 11th Amendment and refuses to teach Alden because, to paraphrase, "it's not even wrong." So there are a lot of young conservatives for whom this state sovereign immunity issue is squarely on their radar, and they are likely to support the Baude/Sachs position. That's one anecdote. And re: Marty, I have not heard young elite FedSoc types enamored over Shelby County's reasoning. On the other hand, Kavanaugh seemed content with Roberts's "enough is enough"/arbitrary line solution in PCAOB v. Free Enterprise fund. There's definitely a mix of textualist/originalist conservatives and "free floating principles" conservatives in law schools now - it'll be interesting to see if that latter group grows in the near future.

Posted by: Mont Revard | Jan 23, 2019 1:35:46 PM

I wonder how representative the under-40 conservatives you've talked to are of under-40 legal conservatives generally. My guess is that they're disproportionately academics and have unusually developed views on the topic, and that if you polled the conservative Justices' clerks, a hefty majority of them reflexively think that Hall is wrong.

Posted by: Asher | Jan 23, 2019 1:11:22 PM

Just to illustrate it from the Preamble of the :

" 1961 Vienna convention on diplomatic relations "

Here I quote :

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,

End of quotation :

All , while diplomatic immunity,is considered as strong one of course.


Posted by: El roam | Jan 23, 2019 12:33:45 PM

Interesting.Endless complicated issues here, as well endless possible angels for observing and prevailing here. Just worth to note:

I don't really see here,substantial legal philosophical argument,starting with the philosophy of immunity as legal doctrine.I could only read some have to do with:dignity, treasuries and regulatory power,and also, some fear has to do with potential partiality of other courts of other states. But, when dealing with immunity, those are poor arguments with all due respect.

Speaking of "law of nations"the immunity, is perceived today in functional terms rather( Internationally I mean).That is to say, the power derives not from the sovereignty necessarily,but rather,the functionality,that is to say:

Granting tool to the sovereign or official,for fulfilling his or its function.Everything is related to functioning. There it starts, there the limit also lies.

So, why not to imply it here also.One for example,could observe it,as matter of jurisdiction or standing rather, like exhaustion of rights.First respecting the forum, the state of the forum, and trying by exhausting there the legal rights.But,if suspicion of certain prejudice arises, then other forums,which are naturally relevant ( in terms of nexus)may come in( like suing in another relevant state ).


Posted by: El roam | Jan 23, 2019 12:21:10 PM

This is a really interesting and important post, Richard. I'd like to press you on a couple of things, however. First, you write that "Hall has been a target of conservative critics for many years." Really? To be sure, it's been the target of several *Justices* for years--but the conservative academy? The Federalist Society lawyers? Is there truly a strong consensus--or even any appreciable, *articulated* enthusiasm for, or defense of, the Court's sovereign immunity jurisprudence-- among conservative thinkers?

More broadly, if the "new," young conservatives are truly committed to the primacy of text and (more importantly) a relative disdain for "functional" and "structural" arguments and for finding limits on government power based upon "fundamental postulates" and “presuppositions” and the like, shouldn't they be much more hostile to huge swaths of the Burger/Rehnquist/Roberts jurisprudence, not only with respect to various immunity doctrines (e.g., sovereign/qualified/presidential (Fitzgerald)—especially Alden, predicated on a need to protect the “dignity” of sovereignty, purportedly a pre-constitutional “structural” principle that “inheres in the system of federalism”) and privileges (e.g., executive privilege), but also, e.g., New York/Printz (predicated on the need to not “blur lines of political accountability”); Boerne, et al. (based on the idea that Congress can’t act upon its own conception of what the Constitution guarantees, and is limited to enacting means “proportional & congruent” to addressing the Court’s constitutional understandings); Shelby County (“equal dignity”); the part of NFIB in which Roberts holds that Congress can’t regulated “prophesied future” commercial activity; the part of NFIB in which Roberts holds that a means to carry into execution a valid enactment may not be “proper” if it entails “reach[ing] beyond the natural limit of [the government’s] authority [to] draw within its regulatory scope those who otherwise would be outside of it”; the “coercion” limits on spending conditions in NFIB, which the opinion-for-four would justify by reference to a so-called “federal balance [that] has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach”). I could, of course, go on (and on, and on)--and that's only with respect to "federalism" and SOP matters. But I know you get the point--namely, that with the exception of rare cases such as Heller, and separate opinions such as Scalia's in Noel Canning, *text* has very little to do with the most important constitutional decisions of Court from, say, 1990 to present. And yet that doesn't appear to have precipitated a crisis, or a strong resistance, among younger conservative constitutionalists.

P.S. Yes, I do recognize that Will and Steve (to their credit) have questioned some of these doctrines—my point, however, is that such critiques are hardly the lifeblood of, e.g., Federalist Society confabs, where such holdings are rarely bemoaned.

Posted by: Marty Lederman | Jan 23, 2019 12:00:42 PM

Are there any examples of young liberals supporting things that old(er) liberals opposed? Or is purely a conservative phenomenon?

Posted by: JFkkk | Jan 23, 2019 10:42:43 AM

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