Forty Two wrote: ↑
Wed May 15, 2019 5:46 pm
Mother Jones overstates the matter by far. [Snipped dubious justification for this assertion.
Since your propounding on matters of law is inevitably roused in support of the legal reasoning of conservative ideologues, it's no surprise that you've chosen to fawn over Thomas's decision while dismissing Breyer's dissent. The problem is that Breyer does an effective job of eviscerating Thomas's specious claims regarding the basis of mandatory sovereign immunity as applied to states.
Nowhere in the US Constitution is there any provision for such mandatory sovereign immunity, neither is there any solid historical basis for it. Even Thomas's historical authority, de Vattel, says that sovereign immunity is based on consent and convention--in de Vattel's time it was conditional and not absolute. That principle still obtains in international law, which has in fact become more restrictive in regard to claims of sovereign immunity, not less. Thomas and the majority construct their doctrine of mandatory sovereign immunity for states by ignoring this and engaging in the same finding of implicit constitutional principles that 'originalists' and 'strict constructionists
' like Thomas are supposedly so suspicious of. As this decision shows, Thomas quite happily finds unstated elements in the US Constitution when it suits his ideological agenda.
There is also the question of infringement by the Supreme Court on the 10th Amendment. Breyer: 'Compelling States to grant immunity to their sister States would risk interfering with sovereign rights that the Tenth Amendment leaves to the States,' and 'While reaffirming Hall
might harm States seeking sovereign immunity, overruling Hall
would harm States seeking to control their own courts.'
The majority decision here does not justify pooh-poohing Breyer's warning regarding throwing out stare decisis
. Breyer doesn't say that even if the decision in Hall
was wrong, it should be adhered to because it didn't cause problems. He cites the principle that 'an argument
that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent' (emphasis mine). He goes on to state that Hall
is not obviously wrong. To me it's clear that if it were obviously wrong, Thomas wouldn't have had to spend so much time attempting to justify overturning it. The final paragraph of the dissent it telling:
It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so
far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next. I respectfully dissent.
I think that Antonin Scalia was correct (Thomas 'doesn't believe in stare decisis
, period'). Instead Thomas specifically relies on his originalist understanding of the Constitution to claim that Hall
'failed to account for the historical understanding of state sovereign immunity.' While Breyer shows that claim is unfounded, Thomas nonetheless is a staunch originalist, if not a notably consistent one.
In any event, as Jay Michaelson writes
This [whether originalism/strict constructionalism should rule the day] is the central question in cases like Roe and Obergefell. No one denies that abortion was banned for much of our country’s history, and that same-sex marriage would have been anathema to the Founders of the republic. The debate is over whether history gets a vote or a veto.
If this same standard is applied to Roe and Obergefell, they would go down in flames.
Further, Thomas is on record stating that he believes Roe v. Wade
was 'wrongly decided.' Given his willingness to scrap stare decisis
in service of his ideology (and the conservative majority on the court's willingness to follow him down that path) there is good reason for those who support a woman's right to control her own body to be apprehensive regarding what might happen when one of the bullshit state laws outlawing abortion makes its way to the US Supreme Court.