State Sovereign Immunity: Franchise Tax Board of California v. Hyatt

There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar cases. It is not a set-in-stone policy that entertains no deviation; the Supreme Court has, throughout its history, overruled a few dozen of its decisions. Think of Plessy v. Ferguson in 1896, in which the Court held that racial segregation was constitutional, versus Brown v. Board of Education of Topeka, Kansas in 1954, in which it held that racial segregation was unconstitutional. On Monday, the Court added one to that list, overruling one of its cases from 1979. While the subject matter of the case (state sovereign immunity) may sound anemic and technical, this Court’s demonstration—that it is not averse to overruling an earlier case—is anything but. For the ardent Court-watcher, you may remember that the question of whether the Court will overrule Roe v. Wade (the case in which the Court recognized a woman’s right to privacy in her desire to obtain an abortion) was omnipresent during the confirmation hearing of Justice Brett M. Kavanaugh. And while state sovereign immunity has virtually nothing to do with abortion, the five-member conservative bloc of the Court has now hinted that it is open to deviating from stare decisis. Here is my analysis of the Court’s decision on Monday in Franchise Tax Board of California v. Hyatt.

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