Hence my use of the word "seem" -- that's what it seems to me. Otherwise, what's the big deal in it being reversed? However, I am happy to take your word for it - you don't think Thomas' decision is either evil or stupid. Thanks for the clarification.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pmIt's an ineffective tactic to misrepresent the position of your interlocutor when you have no other means of discrediting them. I haven't claimed that Thomas's decision here is evil or stupid--that's a pure fabrication on your part.Forty Two wrote: ↑Thu May 16, 2019 2:31 pmWhat's odd is that you seem to think the issue of whether an individual can sue the State of California in Nevada State courts is some sort of major political divide, with the evil conservatives wanting to evilly prevent people from suing one state in the courts of another state. And Thomas's view is of course, stupid in your mind, but Breyer is so well reason he "eviscerated" Thomas. Of course, if you read the dissent, Breyer acknowledges that the position Thomas goes with - which was the dissent 40 years ago -- was well-reasoned too, and may even have been the correct decision -- however, Breyer spends quite a bit of ink talking about how even if a decision is "wrong" that ought not mean the SCOTUS corrects its own error.
I never said he didn't spend most of the dissent examining the legal basis. I said he spent quite a bit of ink discussing the other issue, which he does. It's not an exaggeration, it's my view of it. In any case, we agree - he does address the issue overturning possibly or even probably wrongly decided cases -- he also explains that Thomas' position is reasonable, as was the dissent 40 years ago. I think we can agree on that. I really don't think whether you or I think it's "quite a bit of ink" or "just some ink" is really the point - how about, he spends a not insignificant amount of ink on that issue? The stare decisis ink covers 4 out of the 13 pages - that's quite a bit of ink. It's not the majority, but quite a bit.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pm
Breyer actually spends most of the dissent examining the legal basis of sovereign immunity, and why the majority decision misconstrues not only its historical structure but also its manifestation in US law. While he does address the issue of overturning possibly wrongly decided cases, it's an exaggeration to call that 'quite a bit of ink.'
There have been many instances where court opinions where the SCOTUS overturned itself. It's not the end of the world or an ominous portent of doom.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pm
As Breyer points out, there have been other decisions in the US Supreme Court that followed the precedent set by Hall, and cases which preceded it were also guided by the principle of discretion being allowed to states on the question of sovereign immunity. It's not 'ONE opinion' that was overturned by this decision.Forty Two wrote: ↑Thu May 16, 2019 2:31 pmYou may be correct -- I'm not persuaded 100% by either side on this argument. However, that's not the issue as to whether this is some ominous portent of doom for opinions everywhere, that the majority may willy-nilly reject -- for example, Roe v Wade, which would not only require reversal of ONE opinion, but multiple SCOTUS opinions recognizing a fundamental right to abortion.
Maybe so. I've never found "strict constructionism" to be strictly persuasive. If we were strict constructionists, then the First Amendment would only apply to Congressional laws, and not municipal regulations or State laws. Strict constuctionists would hold that the federal government has no power over visas and immigration, just naturalization. Strict constructionists would hold differently than they do on asset forfeitures and eminent domain. You won't have me defending strict constructionism.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pmThomas calls himself a strict constructionist, but then throws that out the window when it suits his agenda, as in this case.Forty Two wrote: ↑Thu May 16, 2019 2:31 pmFurther, there isn't a side on this that does not "find unstated elements in the US constitution when it suits his ideological agenda." Fuck, Roe v Wade itself is based on "unstated elements" -- it found a fundamental right to privacy "implied" by a couple amendments to the constitution, and there was no majority opinion as to where the right comes from, just that it exists in the constitution, even though it's unstated. To say that it's a problem to find something in the constitution that isn't expressly stated might hoist some folks on their own petard. That's why I don't ever say that something must be expressly in the constitution.
I'm just not alarmed because one of the conservatives overturns a precedent. Five justices agreed with him. They're not all the same. Some even upheld Obamacare - not sure why that person would be considered a "strict constructionist." A strict constructionist would have struck Obamacare down easily.
And, the guy who wrote Roe v Wade was a Republican Nixon appointee, and Roe broke new legal ground and was not strict constructionist. Earl Warren, an Eisenhower appointee and another Republican, wrote Brown v Board of Education (integration in schools, and reversed Plessy v Ferguson) and he wrote Miranda v Arizona (creating out of whole cloth Miranda "rights" which are nowhere in the constitution). He also wrote Reynolds v Sims which ruled that (even though it's not expressly in the constitution) electoral districts for state legislatures must be roughly equal in population. Eisenhower also appointed John Brennan, the leader of the liberal wing of the Court for decades. Eisenhower said appointing Brennan and Warren were his two biggest mistakes.
Bush the Elder appointed David Souter, who was supposed to be conservative, but turned out to be anything but.
John Roberts, a Bush II appointee wrote the opinion saving Obamacare.
Another example is Hugo Black. In the 1930s, President Franklin D. Roosevelt put him on the court to counter the judicial activism of court conservatives who were invoking the Constitution's due-process clause to strike down parts of the New Deal. Black's more restrictive approach to due process, the "liberal" approach at that time, did the trick at the time. But when the liberal activists on the Warren Court tried to use the due-process clause for their own purposes, Black resisted that too — and was thereby misperceived as having "moved to the right." Only his rationale was consistent.
You really never know what Justices are going to do, except by a deep and scholarly review of not only the results of their decisions, but their rationale.
See that's the key difference. Thomas doesn't agree with that reasoning, and he provides his majority opinion with which 5 Supreme Court Justices agreed, and which Breyer himself says is a reasoned position to take. I'm not saying I disagree with Breyer or Thomas, I would have to study the issue closer. But, Breyer himself says the majority view is a reasoned opinion. He just disagrees with it. Disagreeing with it, he proceeds to say that even if he and the Hall decision are wrong, that the "wrong" precedent should be stuck with even assuming without admitting that it is wrong.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pmForty Two wrote: ↑Thu May 16, 2019 2:31 pmYou've hit the crux of the differing judicial view as to what the immunity is and where it comes from. Generally, governmental immunity is held by the government and the government can waive it. What Breyer is saying is that Nevada can subject California to suit whether California consents or not.
He argues in favor of the idea that Nevada (or any other state) has had the right to either allow cases like this one to go forward, or to grant sovereign immunity to its 'sister states.' It's in the very first paragraph of the dissent. Most of the dissent is taken up by Breyer showing that historically the granting of sovereign immunity has been a matter of discretion in international law and by constitutional precedent the same principle applied within the United States.
This isn't a credibility contest between me and Breyer anymore than it's between you and Thomas. Thomas is a better Justice than you, too, and more knowledgeable. So what? That's not the point under discussion. I think I would ultimately side with Breyer on the ruling, incidentally. This is a difficult issue of law, though, where both sides have merit.L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pmBut the question here is whether the Federal Constitution requires each State to grant its sister States immunity, or whether the Constitution instead permits a State to grant or deny its sister States immunity as it chooses.
We answered that question 40 years ago in Nevada v.Hall, 440 U. S. 410 (1979). The Court in Hall held that the Constitution took the permissive approach, leaving it up to each State to decide whether to grant or deny its sister States sovereign immunity. Today, the majority takes the contrary approach—the absolute approach—and overrules Hall. I can find no good reason to overrule Hall, however, and I consequently dissent.Your opinion is noted. I happen to believe that Breyer has more credibility than you on this question. He explains clearly that the rationale used by the majority for overturning the decision does not in fact meet a rigorous standard, which is why he questions what other decisions might be overturned merely on the basis that a majority on the court believe that a previous case was 'wrongly decided.'Forty Two wrote: ↑Thu May 16, 2019 2:31 pmStare decisis hasn't been "thrown out." That's my point. Stare decisis is not a mechanical rule - SCOTUS can, and regularly does, reverse decisions. The majority in this case concluded that it should reverse itself. The dissent thinks it shouldn't. Both sides have rationale as to why it should or shouldn't. My only position on that was that it's not some sort of ominous portent of doom, hailing an era of reversals of settled SCOTUS precedent.
Breyer say, "In any event, stare decisis requires us to follow Hall, not overrule it." That is Breyer saying that right or wrong, Hall should be upheld by stare decisis. He says "Overruling a case always requires “‘special justification.’” " - which is the SCOTUS rule on stare decisis. The special justification is something more than just being wrong in the view of the majority of the court. There has to be something more than "we would have decided the case differently..."L'Emmerdeur wrote: ↑Thu May 16, 2019 4:13 pm
You're contradicting yourself here. You're unable to support your assertion that Breyer 'flat out' said that even if the previous decision was wrong it should be upheld, and that's because he doesn't say that. He says that arguments that a decision was wrong should not carry the day on their own. They should be supported by the standard elucidated in Planned Parenthood of Southeastern Pa. v. Casey: If a law 'def[ies] practical workability' and 'related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,' and 'facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification,' then there is sufficient reason to overturn. In other words, even if a simple majority of the court believes that a previous case was wrongly decided, that should not be sufficient to overturn. The fact that the conservative majority decided to overturn Hall because they believe it was wrongly decided and did not feel bound by the standards put forward in Casey is what leads Breyer to sound a warning.Forty Two wrote: ↑Thu May 16, 2019 2:31 pmHe does say that. Flat out.
That's the same thing as saying "even if the decision in Hall was wrong, it should be adhered to... scrapping it isn't justified by mere wrongness.
exactly - hence the use of the term "even if..." - I didn't say Breyer said Hall WAS wrong, I said he noted that "even if" it was wrong, it doesn't justify scrapping it. It's a common legal method -- assuming without admitting. Dispose of the opponent's argument by assuming a premise to be true, and concluding that "even if what you say is true, you still lose..."
He flat out says "The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” - he's flat out saying even if Hall was wrong, wrongness by itself does not justify scrapping settled, but wrong, precedent.
You refer to the standard of stare decisis, but Thomas addresses that in the majority opinion, listing four factors considered in deciding to reverse. So there is a difference of view between the majority and Breyer in this case as to the appropriate factors to consider in reversing a prior SCOTUS case. Both sides agree, though, that the SCOTUS may reverse its own decisions.
And in the end, again, my only comment was as to the ominous warning that some folks are considering this opinion. That's overblowing it by far, in my view. To overturn Roe v Wade and Planned Parenthood v Casey and the other cases which have acknowledged the right of privacy would be extraordinary, as it would not only impact the abortion cases, but also cases like Griswold v Connecticut (which created the right of privacy out of unstated principles and implications in the contitution.
Any reversal of Roe would have to reverse Ayotte v Planned Parenthood in 2006, too. There the SCOTUS ruled that the Constitution forbade New Hampshire from enacting a parental notification law (for pregnant kids) since it did not include an exception dealing with the health and well-being of the mother. And, they'd have to reverse Whole Woman's Health v Hellerstadt too.
I think Thomas would likely, if he owned the court, seek to reverse Roe v Wade. But there is no way Roberts, Sotomayor, Ginsburg, Kagin, or Breyer would. I doubt Alito or Kavanaugh or Gorsuch would. That's my view of it. Maybe you think there are 5 that would not only disagree with the 60 years of detailed SCOTUS precedent on the right of privacy and abortion, but also reverse it wholesale, but I highly doubt it.