Stephen Breyer Justice Stephen Breyer testifying in 2015. Photo: Diego M. Radzinschi/NLJ

U.S. Supreme Court Justice Stephen Breyer on Monday warned that his colleagues may be poised to overturn court precedents in upcoming cases in ways that will sow “increased uncertainty” about the court’s consistency.

Joined by liberal colleagues Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Breyer dissented in Franchise Tax Board of California v. Hyatt, a state sovereignty case in which the 5-4 majority explicitly overturned a 40-year-old precedent, Nevada v. Hall.

The California case is one of at least four in which the court is being asked to overturn precedents this term.

“Each time the court overrules a case, the court produces increased uncertainty,” Breyer wrote. “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”

Breyer added, “Today’s decision can only cause one to wonder which cases the court will overrule next.” Other pending cases that challenge precedents include Gamble v. United States, a double jeopardy dispute; Knick v. Township of Scott, a takings case; and Kisor v. Wilkie, a regulatory deference case.

Justice Clarence Thomas, who has displayed more willingness to overturn precedent than any other member of the court, wrote the majority opinion, joined by Chief Justice John Roberts Jr. and justices Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh.

In a two-page defense of overturning precedents in his majority opinion, Thomas asserted that stare decisis, the doctrine that favors preserving precedents, is “not an inexorable command.” The Hall case, Thomas wrote, “stands as an outlier in our sovereign immunity jurisprudence, particularly when compared to more recent decisions.” He added, “Nevada v. Hall is irreconcilable with our constitutional structure.”

Clarence Thomas Justice Clarence Thomas (2015). Photo: Diego M. Radzinschi/ALM

At issue in the case, which has been before the court three times, is whether states are immune from being sued in the courts of another state. By a 5-4 vote, the 1979 Nevada precedent ruled that the Constitution does not prohibit suits brought by an individual against a state in the courts of another state.

Kate Shaw, professor at Yeshiva University Benjamin N. Cardozo School of Law, said of the decision Monday, “Justice Thomas has very little use for stare decisis; more surprising is that none of the other members of the majority—in particular the Chief Justice—wrote separately on this point. In light of that, I think the ominous tone Justice Breyer strikes at the end of his dissent is quite justified.”

At a Heritage Foundation and Bradley Foundation panel discussion last week, Kirkland & Ellis partner Paul Clement, a former U.S. solicitor general, said of the pending challenges targeting precedents, “I think which one they decide to overrule and why that one and not the others and what the various justices say about that I think will be profoundly important in terms of measuring the trajectory of the court going forward.”



The court’s ruling in Franchise Tax Board of California v. Hyatt is posted below:



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