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Monday, May 13, 2019

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Posted by Howard Wasserman on May 13, 2019 at 11:34 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Absolutely not Wasserman. For, the fact that the text is silent, doesn't mean, that other means are silent. Like, historical analysis which dictates the solution for Justice Thomas. And that's what he did there. Read the citation I brought there.

Silent text, doesn't imply non solution of course.

And even if the text is silent, there are deeply rooted principles, must be implied whatsoever, going back even to Magna carta ( See Timbs v. Indiana ).


Posted by: El roam | May 16, 2019 10:22:00 AM

No. The"textualist" answer would be that the text of the Constitution is silent as to sovereign immunity, so the Constitution does not bar a lawsuit against Nevada in California courts.

Posted by: Howard Wasserman | May 16, 2019 9:59:03 AM

Ellen Wertheimer ,

But what could he do otherwise? An issue,must be solved, lacking a legal text,can be no pretext for not solving it or prevailing a case.

And anyway, that is the inherent job or duty of one judge ,to deal with cases or controversies,that have no legal basis prescribed explicitly by law.

If the Internet(or other technology) precedes naturally the law,and one controversy emerges and put in front of the court,what shall one judge do then ? Waiting until the legislator is awaken?

That is their job in fact.So,it wouldn't help finally , if you are so called textualist or not.


Posted by: El roam | May 16, 2019 9:50:28 AM

For those of us who are not so-called textualists, it is particularly ironic to watch those judges and justices who claim to be textualists figure out ways to dodge or implicitly disown their own principles when another agenda takes precedence. When Justice Thomas "admits" (see earlier post) that support for his position cannot be found in the Constitution, he admits much more than that: he concedes that he is not, in fact, a textualist except when it suits him to be.

Posted by: Ellen Wertheimer | May 16, 2019 9:08:32 AM

Full disclosure: As a retired attorney for the Multistate Tax Commission, I worked on prior iterations of the Hyatt case, in support of California. To my mind, a state's sovereign interest in not being forced to litigate in another state's courts outweighs a state's sovereign interest in defending the jurisdictional authority of its courts. In the former case, the state is affirmatively asserting its sovereignty in resisting the efforts of private parties to drag it into a sister state's courts, presumably for the benefit of the private party and to the potential detriment of the foreign state. But in the latter case, the forum state is simply reacting to the effort of a private party to litigate a claim against a sister state in the forum state, to the benefit of the private party and not for the benefit of either state. Also, for all Justice Breyer's concern about stare decisis and Roe, stare decisis is not necessarily the exclusive prerogative of liberal justices. Chief Justice Roberts joined the Court in Hyatt. But he wrote the dissent in Wayfair. Even though the Chief Justice agreed Quill was wrongly decided, he nevertheless would have sustained that decision on stare decisis grounds.

Posted by: Sheldon H Laskin | May 14, 2019 4:18:07 PM

Just for James's edification, "I respectfully dissent" is merely a sign that the dissent's author isn't very angry and isn't generally an intemperate person. Kennedy, for example, wrote just three dissents that I'm aware of in his career that didn't end with "respectfully" (or begin with "this respectful dissent," a unique Kennedyism), Stenberg v. Carhart, Hill v. Colorado, and Gratz v. Bollinger, though there may be others. It would be a mistake to think that these were, in his view, the most poorly reasoned decisions from which he ever dissented; they were just the ones he got the most upset about. No one cares too deeply about Nevada v. Hall, so no one is going to get too upset about it, though there are lots of people, perhaps Breyer included, who are very confident that it's right.

Posted by: Asher | May 13, 2019 10:12:59 PM

Seems like the whole "penumbra" was unnecessary and maybe put in to get a 5th vote. I feel like Thomas could have made a more simple occams razor reading of the least complicated assertions.

Article III.2 preempts the jurisdiction for named disputes including admiralty, treaties, suits between states, and citizens suits against states and puts them in federal court (without specifically saying ~only~ in federal courts but that is clearly the intent at least with admiralty and treaties and all are in the same grammatical formation. 11th amendment then eliminates the rights for citizens to sue in federal courts.

Somehow in the litigious 1970s when courts were the answer to any holes in the law (rather than letting the holes persist until the elected officials did their jobs and made laws) courts decided that if the 11th amendment eliminated the right to use federal courts that they were restored to citizens elsewhere?

Posted by: Mike | May 13, 2019 8:56:44 PM

My instinct is that the majority is correct, though I think this is one of those issues where reasonable minds can reasonably disagree. I noticed that the dissent ends with "I respectfully dissent" which is usually a sign that the other sign has a decent set of arguments.

Posted by: James | May 13, 2019 6:13:32 PM

Interesting and important, and really complicated. The point is, that the issue is not really textual basis.For both ( opinion and dissenting ) agree about it. But, if already relying upon historical legal analysis, or implicit structure, each seizes his own perception. Justice Thomas admits it in fact, I quote :

There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review.......

And he continues that:

Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

Yet, the dissenting opinion, claims that, I quote:

The majority also draws on statements of the Founders concerning the importance of sovereign immunity generally. But, as Hall noted, those statements concerned matters entirely distinct from the question of state immunity at issue here. Those statements instead “concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits against themselves in those courts.” 440 U. S., at 420–421 (emphasis added).That issue was “a matter of importance in the early days of independence,” for it concerned the ability of holders of Revolutionary War debt owed by States to collect that debt in a federal forum. Id., at 418. There is no evidence that the Founders who made those statements intended to express views on the question before us. And it seems particularly unlikely that John Marshall, one of those to whom the Court refers, see ante, at 10–11, would have held views of the law in respect to States that he later repudiated in respect to sovereign nations.

End of quotation:

So, textual basis, was a sort of dicta, while agreeing about the win/win here ( methodologically). It was rather the " stare decisis " and the right legal historical analysis concerning the founders intent, and cases followed up to here.

Yet, not enough has been granted in that ruling to CIL ( customary International law ) and law of nations. For, it could change things here. But, we won't stay young no more.


Posted by: El roam | May 13, 2019 3:52:12 PM

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