First, as a supporter of a woman’s right to choose, I am very worried that the current five-justice conservative majority will severely cut back, if not eliminate, a constitutional right to legal and safe abortions. But nothing in the Hyatt case compels that result.
The issue in Hyatt goes back to the very formation of the United States. At the Constitutional Convention, there was substantial concern that the formation of the United States could expose the states to lawsuits by private citizens, contrary to the long-established doctrine of sovereign immunity which precludes such suits in the absence of state consent. Alexander Hamilton, James Madison and John Marshall assured opponents of the U.S. Constitution that that would not occur. But the ink was barely dry on the Constitution when the Supreme Court allowed a private federal lawsuit by a citizen of one state against another state. The public outcry was so great that the 11th Amendment, barring federal lawsuits against a state, was swiftly enacted. But the amendment said nothing about lawsuits in state court.
For over 200 years, legal scholars debated whether the Constitution, as amended by the 11th Amendment, implicitly barred state lawsuits against a state. There were strong arguments on either side. In 1979, the Supreme Court came down on the side of allowing such suits. But the debate did not go away. The 1979 decision was the subject of sustained scholarly criticism. In 1991, California began an income tax audit of a former California resident who had moved to Nevada. Mr. Hyatt responded by suing California in Nevada state court. He initially won a $490 million jury verdict which over two decades, was reduced to $50,000. The Supreme Court ruled this week that a state cannot be sued in state court without its consent (many states have enacted consent statutes for at least some lawsuits in that state). In doing so, the court overruled the 1979 decision.
State sovereignty goes to the very heart of our federal system of government. All the Supreme Court did this week was to resolve an issue that literally goes back to 1787. Nothing in that decision necessarily threatens Roe v. Wade. Indeed, the issue of stare decisis – respect for precedent – does not reflect partisan ideologies. Chief Justice John Roberts, who joined the majority this week, dissented on stare decisis grounds in last year’s Wayfair case which overturned more than 50 years of precedent that a state could not collect use tax from a remote seller without physical presence. And Justice Ruth Bader Ginsburg, who was in the majority in Wayfair, dissented in Hyatt on stare decisis grounds.
Again, I do believe the current majority is hostile to Roe. But the overreaction to Hyatt on stare decisis grounds is misplaced.