Laurence H. Tribe The Supreme Court is smashing precedents. But Roe v. Wade might still be saved.

The Ninth Amendment offers some hope as Justice Stephen Breyer rightly warns that reproductive rights are at risk.
Protesters on both sides of the abortion issue gather in front of the U.S. Supreme Court building during the Right To Life March, on January 18, 2019.Mark Wilson / Getty Images file
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By Laurence H. Tribe, professor of constitutional law

The Supreme Court this week held that a state may not be sued in the courts of another state. Ordinarily, the public would take little note of a decision so technical and procedural. Aside from specialized groups of lawyers and academics, it would’ve drawn a yawn.

Instead, the opinion, Franchise Tax Board of California v. Hyatt, sparked a media firestorm suggesting the decision could have major implications for several lightning-rod issues, particularly abortion, and set a new standard for the depths of partisanship to which the Supreme Court has sunk. These fears are well-founded, but somewhat premature — the worst reverberations of this decision may well be mitigated if the dissenting justices act wisely.

The Roberts Court has increasingly tended to treat long-established precedent as entitled to no special respect.

What made Hyatt so noteworthy was that the court had resolved the same issue the other way in a 6-3 vote 40 years ago in Nevada v. Hall. Monday’s vote was 5-4. Justice Clarence Thomas, joined by the court’s four other conservatives, wrote for the majority that Nevada v. Hallwas wrongly decided and should thus be overruled.

Justice Stephen Breyer, joined by the court’s three other liberals, dissented, voicing dismay that only a change of court personnel seemed to explain the change in result. He pointedly noted the danger of “overrul[ing] a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question.”

All five of the majority justices in Hyatt were appointed by Republican presidents and have typically been described as ideologically conservative, while all four dissenters were appointed by Democratic presidents and are typically regarded as ideologically liberal.

But the Hyatt case itself addressed a question few would likely deem either partisan or ideological, politically or culturally. The fact that the court nonetheless split along both ideological and partisan lines, and that those lines overlapped perfectly, is noteworthy precisely because the issue at the heart of the case is about as dryly technical and nonideological as legal issues are prone to get.

The message thus sent by the court’s split was that the judiciary is now so deeply divided along political lines that the stand-off tends to persist even when the issues would seem to make the difference in perspective predictively irrelevant. Notably, no such polarization was evident in the original case, Hall, which Hyatt overruled.

To be sure, constitutional precedents have in theory been subject to being overruled more readily than precedents involving only statutory interpretation, because constitutional precedents cannot be legislatively overruled but can be jettisoned only by the much more onerous process of amending the Constitution. Yet it remains the case that respect for precedent and the stability such respect makes possible creates a strong presumption against overruling — a presumption clearly not operative in Hyatt. So what happened?

In fact, what’s happened is that the Roberts Court has increasingly tended to treat long-established precedent as entitled to no special respect. But no prior decision has tossed settled precedent overboard quite so casually as Hyatt.

In the landmark 2018 union dues case Janus v. American Federation of State, County, and Municipal Employees, for instance, the conservative majority at least sought to explain why it deemed unworkable the line-drawing in the 1977 decision that Janus overruled. The majority also identified subsequent factual and legal developments that it claimed “eroded” the older decision’s “underpinnings,” making it an “anomaly” in the court’s First Amendment jurisprudence that warranted a new decision bringing the treatment of union dues more in line with this body of law.

Justice Elena Kagan, joined in dissent by the three other liberal justices, punctured those claims forcefully. But at least the majority made an earnest effort to justify its departure from precedent by more than the naked fact — to put it bluntly — that elections have consequences.

None of these standard criteria for overruling a constitutional precedent — evident unworkability, emerging inconsistency with surrounding doctrine, new understandings of old facts, changed social or legal perspectives — were even arguably present in Hyatt, where the overruling majority devoted but a few breezy paragraphs to explaining why the criteria had supposedly been met.

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Breyer, therefore, was right to note that the court’s decision to overrule the 40-year-old Nevada v. Hall precedent in the absence of any significant change in circumstances carries potentially ominous implications for the staying power of other, more controversial, precedents. Most commentators have assumed Breyer was signaling mortal danger for the Court’s 1973 and 1992 abortion precedents, the latter of which — Planned Parenthood v. Casey — he mentioned explicitly.

I’m not so sure that was the best way to decode Breyer’s message, especially because those decisions have come to occupy much more central positions in our culture and law than a relatively marginal ruling like Nevada v. Hall. I wouldn’t lightly assume that the chief justice, in particular, would be as willing to overrule the abortion precedents as he was willing to upend the relatively minor interstate sovereign immunity precedent set by Nevada v. Hall. Watering the abortion precedents down gradually would be one thing; overturning them entirely and relegating the entire matter to the states would be quite another.

Indeed, rulings about reproductive liberty and equality have been the focus of much more significant life-shaping reliance, especially by women throughout society, than most other judicial decisions of the past half-century. The only “reliance” (a key legal principle in decisions concerning precedent) identified in Hyatt was that of the individual litigant, who had spent time and money on the premise that Hall would remain the law.

The court’s decision to overrule the 40-year-old Nevada v. Hall precedent in the absence of any significant change in circumstances carries potentially ominous implications.

As Steven Mazie of The Economist has persuasively argued, it seems as likely that Breyer and the three colleagues who joined him were signaling a broader concern about the newly consolidated five-justice Republican majority flexing its muscles to shred precedents it doesn’t like and didn’t agree with in the first place.

To take such a dismissive stance toward precedent is to empty it of all significance, treating every issue confronting the court as though it were a matter of first impression. That kind of judicial muscle-flexing is potentially lethal to the credibility of the Supreme Court as the least overtly political civil institution of our government.

One silver lining is worth noting: In Hyatt, the majority conceded that its new ruling was based not on the Constitution’s explicit text but on general inferences from constitutional design, structure and history. The same was true of the court’s anti-commandeering states’ rights decisions in the 1990s.

Breyer’s Hyatt dissent objected that the case for going beyond the Constitution’s text to overturn precedent in such abstract structural matters is a weak one. Having lost that fight, Breyer and his liberal colleagues might now consider emphasizing that the court’s more liberal rulings about such matters as reproductive rights and sex and gender equality can hardly be criticized post-Hyatt by the conservative justices in the Hyatt majority as textually ungrounded.

If anything, individual rights rulings not grounded in explicit textual descriptions of the rights themselves (beyond phrases like “due process of law” and “liberty”) can at least invoke, as they at times have, the Ninth Amendment’s textual guarantee that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Laurence H. Tribe

Laurence H. Tribe is a professor of constitutional law at Harvard University and is co-author, most recently, of “To End A Presidency: The Power of Impeachment.”

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