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.