Court’s conservatives overturn precedent; liberals ask ‘which cases the court will overrule next’

Washington — The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

The issue in Monday’s 5-4 ruling was one of limited impact: whether states have sovereign immunity from private suits in the courts of other states. In 1979, the Supreme Court ruled that there is no constitutional right to such immunity, although states are free to extend it to one another and often do.

But the court’s conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be hauled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, who wrote Monday’s decision.

Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.

But he said the court’s decision four decades ago in Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent.”

As was evident during the confirmation hearings of President Donald Trump’s nominees to the Supreme Court — Justices Neal Gorsuch and Brett Kavanaugh — liberals are worried about what other court precedents the newly fortified conservative majority will find wrongly decided.

Justice Stephen Breyer clearly had other issues — abortion rights, for instance, or affirmative action — in mind in his dissent.

It is “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question,” Breyer wrote, adding: “Today’s decision can only cause one to wonder which cases the court will overrule next.”

Gorsuch and Kavanaugh joined Thomas in the majority, along with Chief Justice John Roberts and Justice Samuel Alito.

Breyer wrote for liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Adhering to precedent dominated the oral arguments in the case. Two of the court’s most experienced practitioners recounted the founding of the union and the framing of the Constitution, and both claimed that the notion of state sovereignty was on their side.

Thomas sided with the view that “the states’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.”

He conceded that it was not explicitly set out in the text of the document. However, “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,” Thomas wrote.

But Breyer countered that the arguments on the other side are just as compelling, and that there was no reason to junk a precedent that has hardly proven unworkable. There have been only 14 cases of states being involuntarily called into another state’s courts, he said.

“Stare decisis requires us to follow Hall, not overrule it,” Breyer wrote, mentioning one of the court’s decisions upholding abortion rights as an example. “What could the justification be in this case? The majority doesn’t find one.”