Wednesday, May 15, 2019

The Stare Decisis Issue in the State Sovereign Immunity Case (Media Critic Edition)

by Michael C. Dorf

For a case that decided a relatively obscure question -- whether an implicit constitutional principle of sovereign immunity shields a state from lawsuits in the courts of other states -- Monday's SCOTUS ruling in Franchise Tax Board of California v. Hyatt -- garnered considerable media attention. The Washington Post ran two stories (here and here); so did the NY Times (here and here), adding as a bonus an op-ed by Prof. Leah Litman; and NPR's Morning Edition devoted a 3-and-a-half-minute segment to host Rachel Martin's interview of SCOTUSblog's Amy Howe about the case. Who knew the public cared so much about state sovereign immunity?!

But of course the media coverage reflects something else entirely. Justice Breyer's dissent in Hyatt criticized Justice Thomas's majority opinion for inadequately justifying the overruling of Nevada v. Hall, a 1979 case that had come out the other way. Most of the media coverage of Hyatt focused on whether the Court's willingness to overrule Hall portends a willingness to overrule more consequential precedents, especially Roe v. Wade.

That's fair enough, I suppose. The relatively small number of people who want to know what's really going on can read the case itself. They (by which I mean you, dear reader) can also consult my latest Verdict column, in which I provide some context for the sovereign immunity issue before pivoting to the question whether Justice Thomas's reliance on constitutional structure and history contradicts the criticism he and other conservatives frequently level at liberals for finding implied rights in the Constitution. (Spoiler: It does.)

Here I want to critique some of the media coverage of the stare decisis issue in Hyatt and beyond, before setting forth my own analysis of the stare decisis question. I'll focus most of my attention on the NPR segment, because it best exemplifies what goes wrong when journalists without any legal expertise try to cover even modestly complex legal issues.

The NPR segment  begins pretty well, with a succinct and accurate summary of the holding in Hyatt. Host Martin then introduces Howe, who likewise gives a succinct and accurate account of Justice Breyer's dissent: He complained that the majority was overruling Hall simply because they disagreed with the outcome, which, under the ordinary rules of stare decisis, is not a sufficient reason to overrule.

Martin then says: "But that's the gray matter, right? That's the subjective part, if you think it demands it."

What could that possibly mean? "Gray matter" typically refers to brains or perhaps metaphorically, thought, which seems like a complete non sequitur. Perhaps Martin meant something like "gray area." Let's assume so and give her a pass for using the wrong idiom. On live radio, anyone can make such a mistake.

But even so, Martin's question and statement are puzzling. Howe has just explained that overruling a precedent requires something more than simple disagreement. The question is what else overruling requires. A prepared journalist could have asked a question like this: "What are the criteria for overruling a precedent, if simple disagreement with the outcome of the earlier case is not sufficient?" Instead, Martin seems to say that there are no criteria or that the unnamed criteria are so subjective that whether "it" (by which she presumably means the bottom line of those criteria) "demands it" (by which she means overruling, presumably) all depends on something like a justice's ideology. Or maybe not. I've now spent much more time trying to figure out what Martin could have meant than Martin likely spent in formulating the question.

Howe nonetheless agrees with whatever it is she thinks that Martin has just said. She vamps for a few seconds with word salad that nonetheless manages to insult me and all my colleagues in the academy: "Right and it's so there's a debate about it, this is an interesting constitutional issue; it's something only a law professor could love." Howe then pivots to the real action. Justice Breyer, she says, is looking down the road at other precedents that might be overruled. The discussion then turns to abortion, which is where it was headed all along and the only reason NPR decided to run the segment.

Here Martin asks a sensible question. She asks how then-Judge Gorsuch and then-Judge Kavanaugh responded to questions about stare decisis and abortion during their confirmation hearings. Howe gives technically accurate answers that cast her in the perhaps-unwitting role of continuing the charade in which Gorsuch and Kavanaugh engaged during their respective hearings. Howe says that both nominees referred to Roe as "settled law," adding that Kavanaugh called it "precedent on precedent."

These are highly misleading statements, because, as I explained last September, both phrases connote to the unsophisticated listener the idea that the person uttering them intends to be bound by the earlier precedent, whereas they don't actually mean that at all. "Settled law" is simply a synonym for precedent, which can be overruled (and thus unsettled). "Precedent on precedent" simply means a precedent about precedent; it does not mean a precedent entitled to extra weight. Simply saying that Trump's nominees referred to Roe and later abortion cases as "settled law" and "precedent on precedent" without adding that these are deliberately misleading terms is like omitting that the person you are quoting had his fingers crossed behind his back or was a stage actor when he made the relevant statement.

Martin predictably is misled by Howe's invocation of "settled law" and "precedent on precedent." She says "Huh, but Stephen Breyer isn't convinced, or at least is seeing signs that that could be fragile." She thereby mistakenly implies that Breyer disbelieved the assurances from Gorsuch and Kavanaugh that they wouldn't overrule Roe, not that Breyer correctly understood that "settled law" and "precedent on precedent" were only ever meant to mislead the public with false assurances. Howe, who surely knows better, nonetheless says "that's right." Ugh.

Let me be clear that despite my pointed criticism, I think highly of Martin and especially of Howe. It's hard to say just what you mean when talking spontaneously. On multiple occasions, I have appeared on panels that were then transcribed for publication and found that I had said things that were incoherent or outright wrong. We say things like "that's right" as a kind of polite segue. We interrupt ourselves. We feel pressure to fill silences with word salad. I can't say that I would have done better than Howe. I might have done worse. And Martin, as a generalist, interviews people on multiple subjects. She cannot possibly be expected to be an expert in everything.

Put differently, my concern is not that the media coverage of the stare decisis issue in Hyatt was incompetent. My concern is that to dumb down the topic sufficiently for the non-lawyer public, it did not convey the real issues. So what are those issues? I would focus on three.

(1) Reliance is an important factor in deciding whether to overrule a precedent: substantial reliance interests should cut against overruling. Here is what Litman says in her op-ed about Justice Thomas's discussion of reliance:
the justices said that the reliance of some parties on the prior decision was insufficient to “persuade us to adhere to an incorrect resolution of an important constitutional question.” Women who have structured their lives around being able to decide when and whether to have a child should take note.
But that language could be read to mean that the Hyatt majority was saying reliance simply doesn't matter. The Court didn't say that. Rather, Justice Thomas said that case-specific reliance -- by people whose cases are pending when the overruling case is decided, including the parties to the overruling case itself -- doesn't count. He writes:
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. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question.
Put differently, nothing Thomas says in the Hyatt majority undercuts the notion that people structuring their lives around a precedent counts against overruling that precedent. And as Prof Laurence Tribe tweeted in response to Litman's op-ed:
Overruling Roe and Casey would upset much deeper and broader societal reliance interests than the “case-specific costs” deemed insufficient in Franchise Tax Bd. v. Hyatt to preserve Nevada v. Hall. So there is cause for concern but not panic.
In response, Litman tweeted her agreement with Tribe, but added that she is not especially "optimistic that" the "systemic and widespread societal reliance interests" in legal abortion "will be enough to persuade the current Court" to retain Roe.

Litman's pessimism on this point is probably warranted. After all, the majority (on this point) in Planned Parenthood v. Casey included substantial discussion of the societal reliance interests Tribe and Litman describe; yet Justice Thomas fully joined CJ Rehnquist's opinion dissenting on this point and characterizing the societal reliance argument as "unconventional," "unconvincing," "undeveloped," "totally conclusory," and "dubious." Nothing suggests that Thomas has changed his mind in the intervening 27 years or that the other four conservatives would take a different view.

(2) Reciprocity is a condition of adherence to stare decisis. If liberals don't follow conservative precedents absent compelling reasons to overrule, conservatives will feel like suckers if they follow liberal precedents absent compelling reasons to overrule -- and vice-versa. Thus, Justice Breyer's ode to stare decisis falls on deaf ears if he cannot credibly claim that he typically accepts the Court's precedents even if he might disagree with them as an original matter.

Does he? Not so much. In a 2007 article, Prof Fred Schauer summarized a substantial body of empirical research establishing "that the cases in which the Justices actually follow precedent are rare, and the cases in which following precedent is dispositive are rarer still."

Justice Breyer is hardly an exception, especially when it comes to state sovereign immunity. He has dissented from all of the Court's major decisions applying state sovereign immunity. He joined Justice Souter's dissent when the Court said Congress could not abrogate state sovereign immunity when legislating under the Commerce Clause. He joined Souter again when dissenting from the ruling that states have sovereign immunity in their own courts. And he wrote his own dissent from the application of state sovereign immunity before federal administrative agencies. There he said that "even were I to believe that th[e modern state sovereign immunity] decisions properly stated the law--which I do not--I still could not accept the Court's conclusion here." While Breyer did not technically have the occasion to vote to overrule the state sovereign immunity cases with which he disagreed, he made pretty clear that he would if given the chance. That disposition raises the question why Justice Breyer's conservative colleagues should adhere to opinions with which they disagree that reject state sovereign immunity when Justice Breyer evidently would not adhere to opinions with which he disagrees that grant state sovereign immunity.

(3) Workability is another factor in deciding whether to adhere to precedent. The Court will overrule a decision that is unsound in principle and unworkable in practice. It's clear that the Hyatt majority thought that Hall was unsound in principle, while the dissenters thought that Hyatt is unsound. What about workability? Standing alone, either the Hall rule or the Hyatt rule is certainly workable. Either litigants can or cannot sue states in the courts of other states.

The problem is that Hyatt does not stand alone. It stands alongside Alden v. Maine, in which the Court found that the Constitution protects state sovereign immunity in state courts as well as federal ones. That's one of the sovereign immunity decisions from which Breyer dissented, and I agree with his dissent in that case. But if Breyer is urging adherence to precedent, presumably he needs to adhere to Alden (see 2 above). And yet the combination of Alden and Hall is bizarre: A citizen of California may not sue California in the California courts but the same citizen of California can sue California in Nevada. There is virtually no functional justification for that juxtaposition, which seems quite backwards.

Justice Breyer's dissent does not grapple with this problem. He simply quotes language from Alden in which Justice Kennedy asserted that the result in Alden was consistent with the result in Hall. Yet the language quoted addressed the different sources of power for abrogating state sovereign immunity. It did not address the functional oddity of allowing a state to be sued without its consent outside but not within the state.

In the end, the best Justice Breyer does with respect to workability is to say -- correctly -- that the stakes in these cases are pretty low. As a practical matter we know the Hall rule wasn't unworkable, because in the forty years that Hall was the law, there was no flood of cases against states in the courts of sister states. Nor was there such a flood in the twenty years that Alden co-existed with Hall.

That's not a bad answer, although I wish Justice Breyer had made it expressly as a response to the odd juxtaposition of Alden and Hall, rather than as simply a reason why there's no need to overrule Hall.