Chemerinsky: Does precedent matter to conservative justices on the Roberts Court?
Erwin Chemerinsky. Photo by Jim Block.
How much does the Roberts Court care about precedent and stare decisis? Ultimately, this will be crucial as the U.S. Supreme Court reconsiders issues such as abortion, affirmative action, and gay and lesbian rights. The answer from 2018 October term seems clear: Stare decisis matters little to the conservative justices on the court.
Janus v. American Federation
Actually, any discussion of stare decisis and the Roberts Court should begin on the last day of the last term, June 27, 2018, with Janus v. American Federation. In 1977, in Abood v. Detroit Board of Education, the court held that nonunion members can be required to pay the share of the union dues that go to support the collective bargaining activities of the union. The court explained that nonunion members benefit from collective bargaining in their wages, their hours and their working conditions. The court said that they should not be able to be free riders. The court held, though, that nonunion members cannot be required to pay the share of the dues that go to support the political activities of the union; the court said that would be impermissible compelled speech.
In Janus, the court, dividing 5-4 along ideological lines, overruled Abood and held that it violates the First Amendment to require that nonunion members pay “agency fees.” Justice Samuel A. Alito brushed aside concerns about stare decisis. The court said that stare decisis is not an “inexorable command,” and it is at its weakest in constitutional cases. Justice Elena Kagan, joined by the other three liberal justices, wrote a vehement dissent and declared: “Rarely if ever has the court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis.
There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched in both the law and the real world. More than 20 states have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the court does today.”
Franchise Tax Board of California v. Hyatt
In Nevada v. Hall (1979), the Supreme Court held that a state government may be sued in another state’s courts. The court stressed that a state has a sovereign interest in providing a remedy for its citizens when they are injured, including by another state. On May 13, 2019, in Franchise Tax Board of California v. Hyatt, the court, 5-4, overruled Nevada v. Hall.
I briefed and argued this case in the Supreme Court on behalf of Gilbert Hyatt. Hyatt moved from California to Nevada in 1991. Some employees of the Franchise Tax Board believed it was a sham and that he had not actually moved to Nevada. They went after him with a vengeance. They went to Nevada and broke into his house. They spread private information about him to a large number of people. They defamed him. Ultimately, after decades of delay, Hyatt prevailed in the tax proceedings with a conclusion that, in fact, he had moved to Nevada.
Hyatt sued the Franchise Tax Board in Nevada state trial court. A jury awarded him $389 million in damages, reflecting its perception of the egregiousness of the conduct of the employees of the Franchise Tax Board. After years of litigation, the judgment had been reduced to $100,000.
But the Supreme Court reversed that, overruling Nevada v. Hall. Although the text of the Constitution is silent about whether a state can be sued in another state’s court. Justice Clarence Thomas, writing for the five conservative justices, rejected what he called “ahistorical literalism.” The court said that history supported the view that states were accorded sovereign immunity and could not be sued in any forum.
What about stare decisis? The court said that “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.’ “
The court acknowledged the unfairness to Hyatt but said it doesn’t matter: “Because of our decision to overrule Hall, 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.”
Justice Stephen G. Breyer wrote for the four dissenters: “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.’ 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.”
Knick v. Township of Scott, Pennsylvania
The usual rule is that state remedies do not need to be exhausted before bringing a federal constitutional claim under 42 U.S.C. §1983. One of the only exceptions to that is for claims that the government violated the Constitution by taking private property for public use without just compensation. In Williamson County Regional Planning Commission v. Hamilton Bank (1985), the Supreme Court held that it cannot be said that a state or local government has taken private property without just compensation if it still has administrative remedies available.
On June 21, in a 5-4 decision, again split along ideological lines, the court in Knick v. Township of Scott, Pennsylvania overruled Williamson County. No longer is there a need to exhaust state or local remedies before bringing a takings claim. Scott, Pennsylvania, has an ordinance requiring that private property with burial grounds be available to the public in daytime hours. Rose Mary Knick owns a 90-acre farm with a small graveyard on her property. Knick alleged an unconstitutional taking, but a federal court dismissed her suit because she had not first sought compensation in state court.
Chief Justice John G. Roberts Jr., writing for the conservative majority, concluded that Williamson County was wrongly decided and that the “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” The court rejected the long-standing principle that a taking does not occur at the time of the property deprivation, so long as an adequate mechanism for compensation is available. The court said instead that “a government violates the Takings Clause when it takes property without compensation, and … a property owner may bring a Fifth Amendment claim under §1983 at that time.”
Justice Kagan wrote a blistering dissent and focused especially on stare decisis, criticizing the court for “smash[ing] a hundred-plus years of legal rulings to smithereens.” She said that “the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance …, it is hard to overstate the value, in a country like ours, of stability in the law.” She lamented: “If that is the way the majority means to proceed, … we may as well not have principles about precedents at all.”
Of course, not every Supreme Court case this term to consider overruling precedents did so. In Gamble v. United States, the Supreme Court reaffirmed that for purposes of double jeopardy, the federal government and the state governments are separate sovereigns and that a prosecution in one does not preclude a prosecution for the same crime in the other. In Kisor v. Wilkie, the court reaffirmed precedents holding that courts should defer to agencies in interpreting their own statutes.
Discussions about stare decisis are always somewhat frustrating because inevitably they conclude that precedent should be followed, except when it should be overruled. Yet virtually everyone agrees that precedent matters in the law to provide predictability and stability. The question is how much weight should be given to precedent. Recent decisions of the Roberts Court indicate that the five conservative justices overall will give little deference to precedents that they want to overrule.