In this column, former lawyer and GQ The team writer, Jay Willis, unravels the confusing intersection of law, politics and culture.
On Monday, the Supreme Court of the United States issued its opinion on California franchise tax advice v. Hyatt, in which the conservative bloc of five judges of the Court determined that the state governments enjoy sovereign immunity, that is, they can not be sued by law, both in the courts of their own state and in the courts of other states.
This case is notable not only because of its implications for the future of certain interstate civil claims. To reach its conclusion in Hyatt, the majority first had to annul a 40-year-old Supreme Court case that came to the opposite conclusion, about the vociferous protests of the four-judge liberal minority. At a time when activists against the election are working diligently to present a case before the Court that will allow its five conservative judges to annul the 46-year-old precedent Roe v. Wade, thus destroying abortion rights in this country, Hyatt It works as an orderly preview of that coming confrontation. And the result should make the pro-choice proponents very nervous.
When issuing opinions, judges (usually) adhere to a principle called stare, which refers to the notion that they must govern in a given case in accordance with the decisions that they (and other judges) issued in similar cases in the past. This trust in the precedent provides simple and common-sense benefits: it leads to consistent and predictable judicial outcomes, reduces the number of disputes that result in actual litigation and allows the law's consistent and long-term development. (Imagine how useless the legal system would be if, for example, each judge resolved each case based solely on their feelings about the facts in question and without any relevant reference points).
Since the Supreme Court established in Roe that the Fourteenth Amendment protects the right of women to choose, is stare which has protected this failure from decades of attacks mounted by the conservative movement. To date, the Court has rejected all annulment opportunities, which means that federal judges in lower courts who hear cases of abortion, even judges who quietly find the argument against the election more convincing, must defend Roe Y Planned Parenthood v. Casey, a decision of 1992 that affirmed by little Roe, as well. During his confirmation hearings last year, Brett Kavanaugh duly acknowledged that Roe is "resolved and is a precedent of the Supreme Court," and has "the right to respect according to the principles of stare. "
In HyattHowever, the five conservative judges of this Court establish a clear framework for when they may consider it appropriate to abandon the precedent. Stare, Judge Clarence Thomas writes, "is not an inexorable commandment." (You will notice that Kavanaugh's proclamation recognizes the existence of an established law, but makes no promises about how he would treat him as a Supreme Court judge). Next, Thomas's opinion lists the factors that, according to him, justify the overthrow of precedents in Hyatt and in similar cases: when the reasoning of the old opinion is of dubious quality, for example, and inconsistent with related decisions, and has been affected by subsequent issues that have been presented to the Court.
Again, the application of these factors to sovereign interstate immunity is not an especially convincing reading. But it's easy to see how the same judges could use the same list to cancel Roe Y Casey or, at least, make the promises of those cases meaningless. Liberals and conservatives have criticized for a long time Roe as a sloppy written opinion, an example of judges reaching their preferred conclusion and then applying a legal explanation to reverse engineering. Even Judge Ruth Bader Ginsburg has referred to Roe as an episode of "hard-line judicial intervention" that, according to her, galvanized the movement against the election and made it difficult for activists in favor of the election to guarantee abortion rights through the legislative process. Applying this logic, the Conservatives of the Court could declare Roe be legally inadequate, too uncomfortable and difficult to manage to continue functioning as a precedent.