Brett Kavanaugh, U.S. Supreme Court associate justice nominee for President Donald Trump, is sworn in during a Senate Judiciary Committee hearing in Washington, D.C. Photo: Saul Loeb/Pool via Bloomberg

U.S. Supreme Court justices engaged in a discussion Wednesday on the hot-button issue of when and whether the court’s precedents should be overturned—a question that figured in Justice Brett Kavanaugh’s confirmation hearing last year.

The colloquy came as the court heard arguments in Franchise Tax Board of California v. Hyatt, one of three cases so far this term in which litigants are asking the justices to overturn precedents of varying strength and vintage.

Each may turn out to be a test of fealty to precedent or stare decisis for Kavanaugh and other justices. At his confirmation hearing last September, Kavanaugh said, “A judge must interpret the Constitution as written, informed by history and tradition and precedent.” He also described Roe v. Wade as “settled law as a precedent entitled to respect.”

In Wednesday’s case, California is asking the high court to overturn a much more obscure precedent: Nevada v. Hall, a 1979 decision that permits a state to be sued in another state’s courts without consent. Gilbert Hyatt, a Nevada resident who got into a tax dispute in California, sued the California board in Nevada.

The case has been before the court twice before, the last time being in 2016 after Justice Antonin Scalia died when the court divided 4-4 on whether Nevada should be overturned.

The justices again seemed split Wednesday, though one side or the other will win this time, because it is now a nine-justice court.

Seth Waxman of Wilmer Cutler Pickering Hale and Dorr argued for California that the precedent should be overturned, while Erwin Chemerinsky of the University of California, Berkeley School of Law urged the justices to leave Nevada alone.

“There’s no compelling reason for overruling this precedent,” Chemerinsky told the justices. “There’s a 40-year-old precedent, and this court has made clear that it will overrule stare decisis only if there’s a compelling reason.”

Justice Samuel Alito speaking at the Federalist Society 2016 National Lawyers Convention. Photo: Federalist Society

Justice Samuel Alito Jr. asked Chemerinsky: “The doctrine of stare decisis serves many valuable purposes. So which ones would you say most strongly support your argument here?”

Without hesitation, Chemerinsky answered, “Adherence to precedent promotes stability, predictability, and respect for judicial authority … This court overturning its own precedents inherently undermines that respect for judicial authority.”

Justice Stephen Breyer agreed. “It’s like a little chink in an armor, and because lawyers have to use our cases to talk to clients, and the client doesn’t like what he’s hearing [asks,] ‘Can we do anything about it, whatever the field?’ And the more cases we overrule, the harder it is for the lawyer to say no.”

Chemerinsky agreed, but then Alito spoke again. “Do you think that the public would have greater respect for an institution that says, you know, ‘We’re never going to admit we made a mistake, because we said it and we decided it,’ … or an institution that says, ‘Well, you know, we’re generally going to stick to what we’ve done, but we’re not perfect … and we think we made a big mistake, we’re going to go back and correct it.’”

Overturning precedent is acceptable in some instances, Chemerinsky said, but he insisted that “precedent should be overruled only where there is a compelling reason for doing so.”

Kavanaugh, who seemed most troubled about when to overrule precedents or not, interjected: “The question is how we figure out what the compelling reason is, and that’s very difficult … Is it enough, for example, if we think it’s egregiously wrong and the prior decision has severe practical consequences and there’s no real reliance interest at stake? Is that enough?”

Kavanaugh continued: “How to apply that to a particular case is hard, but what I just said in terms of egregiously wrong, severe practical consequences, no real reliance, is that enough in your view to overrule?”

Chemerinsky responded: “I think egregiously wrong, no practical consequence to overruling precedent, certainly go a long way to indicating there is a compelling reason for doing so.”

For his part, Waxman invoked comity and the importance of state sovereignty as factors that make it clear that states can’t be hauled into the courts of other states.

“The power to subject sovereign treasuries to judgments of other sovereigns’ courts is very much the power to destroy,” Waxman said. “As to stare decisis, this really is a case where [Nevada v.] Hall is a ‘survivor of obsolete constitutional thinking’” and should be overturned.


Read more:

Supreme Court Tees Up Major Challenge to Power of Federal Regulators

Efforts to Unsettle ‘Roe’ Move Toward Supreme Court, as Kavanaugh Faces Senate

Justice Kagan Throws Shade on Her Originalist Colleagues

Justice Dept. Frets About Kavanaugh Recusal in Challenge to CFPB’s Power

Sessions Lauds New ‘Originalist’ Majority at Supreme Court. Not So Fast