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Supreme Court Justice Issues Abortion ‘Warning’ in Response to Conservative Majority Overturning Judicial Precedent


Supreme Court Justice Stephen Breyer was not pleased that the conservative majority on the U.S. Supreme Court decided to overturn 40 years worth of judicial precedent in state sovereignty case on Monday, and he suggested that this was a sign that Roe v. Wade could be next.

Breyer concluded early on that he could find “no good reason to overrule” Nevada v. Hall. The majority decided 5-4 to overturn Hall in the case of Franchise Tax Board of California v. Gilbert P. Hyatt. What it means is that states will be required to grant other states immunity from private lawsuits. This had not been the case for the last four decades. Previously, a state was able to decide whether or not to grant a fellow state immunity from a private lawsuit. As Breyer later explained, however, the issue hasn’t come up very often.

Breyer set the stage as to what Nevada v. Hall was about from an issues standpoint, and discussed where the Court had stood on the issue — until now:

Can a private citizen sue one State in the courts of another? Normally the answer to this question is no, because the State where the suit is brought will choose to grant its sister States immunity. But the question here is whether the Federal Constitution requires each State to grant its sister States immunity, or whether the Constitution instead permits a State to grant or deny its sister States immunity as it chooses. We answered that question 40 years ago in Nevada v. Hall, 440 U. S. 410 (1979). The Court in Hall held that the Constitution took the permissive approach, leaving it up to each State to decide whether to grant or deny its sister States sovereign immunity. Today, the majority takes the contrary approach—the absolute approach—and overrules Hall.

Breyer noted that the main fear when Hall was decided were the “practical implications.” He said that he could “find nothing in the intervening 40 years to suggest that this fear was well founded.”

“The Board and its amici have, by my count, identified only 14 cases in 40 years in which one State has entertained a private citizen’s suit against another State in its court,” he said. For Breyer, ignoring stare decisis should cause concern for the next time the majority decides to overturn precedent:

It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Notice that Breyer is citing to Planned Parenthood v. Casey while wondering aloud about what conservative justices may have in mind next.

Casey, in reaffirming Roe, held that “matters,” such as abortion, “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

Many saw this as a clear “warning” from Breyer.

Supreme Court Justice Clarence Thomas seemed to respond directly to Breyer’s complaint about stare decicis by saying “stare decisis is ‘not an inexorable command.'”

“And we have held that it is ‘at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,’” he wrote.

[Image via Mandel Ngan/AFP/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.