Anita S. Krishnakumar is the Mary C. Daly Professor of Law and the Associate Dean for Faculty Scholarship at St. John’s University School of Law.
The U.S. Supreme Court’s decision in Franchise Tax Board of California v. Hyatt has received significant attention for its overruling of Nevada v. Hall, a 40-year-old precedent that held that states lack sovereign immunity in each other’s courts. Observers have been quick to quote the penultimate sentence of Justice Stephen Breyer’s dissent (“Today’s decision can only cause one to wonder which cases the Court will overrule next”) and point to Hyatt as a harbinger that Roe v. Wade and other similar high-stakes constitutional precedents may be next in line for abrogation.
Overruling prior judicial decisions is a big deal; the doctrine of stare decisis directs judges, including Supreme Court justices, to follow prior decisions even when they think those prior decisions are wrong. The Supreme Court is not supposed to overrule a prior ruling unless at least one of several conditions is met: The decision is unworkable and lower courts have found it difficult to administer; it rests on outdated facts; or it is inconsistent with later legal developments, such as other judicial decisions or new laws passed by the legislature. The court is also not supposed to overrule precedent that parties have relied on in structuring their lives.
Despite all of the above, the Supreme Court’s decision in Hyatt should not have been surprising — because it continues a jurisprudential trend that extends beyond the court’s constitutional cases and that began more than a decade ago. Indeed, in a recent article titled “Textualism and Statutory Precedents,” I note that the court’s textualist justices have proved remarkably willing to abandon stare decisis and argue in favor of overruling established statutory interpretation precedents — even though such a practice is difficult to reconcile with textualism’s core aims of promoting clarity and stability in the law. The article suggests that textualist justices’ proclivity to overrule may be connected to two related features of modern textualism: (1) the oft-unspoken predicate assumption that there is a singular “correct answer” to every interpretive question; and (2) the political reality that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order — including outmoded precedents reached through the use of illegitimate, atextual interpretive resources. Both of these observations apply equally to constitutional interpretation; in fact, they may apply even more powerfully in the constitutional context, where the stakes are higher and Congress cannot step in to correct an incorrect interpretation.
Let me expand on each of these observations briefly. Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question — and there is some evidence that they tend to find a plain meaning more often than do nontextualist jurists. As the late Justice Antonin Scalia and co-author Bryan Garner put it in a book designed to serve as a primer on the interpretation of legal texts: “[M]ost interpretive questions have a right answer. Variability in interpretation is a distemper.” This assumption, which I have called the “correct answer mindset,” may have an underappreciated side effect for those who subscribe to it. That is, a belief that all interpretive questions have a single correct answer can make it especially difficult for textualist jurists to accept the idea that an incorrect statutory or constitutional interpretation should be left in place simply because it was first in time. As a result, the famous tenet that “in most matters it is more important that the applicable rule of law be settled than that it be settled right” may prove challenging for textualists to adhere to in practice. Justice Clarence Thomas in particular seems to have a difficult time reconciling the “correct answer” mindset with the doctrine of statutory stare decisis: He regularly has authored opinions that advocate overruling precedents because they are simply “wrong” — and this argument has featured prominently in a number of cases in which he alone has voted to overturn a statutory precedent.
Textualist jurists’ readiness to overturn precedents may also be explained, in part, by an underappreciated background attribute — that the most committed among them see themselves as “revolutionaries” seeking to reinvent the judiciary’s approach to interpreting statutes and the Constitution. Many served as legal advisors to Republican presidents prior to joining the bench, and some played key roles in selecting and vetting judicial nominees who could be counted on to follow specific jurisprudential approaches. As judges themselves, they now are on a mission to reshape the way that courts construe both the Constitution and statutes — championing an originalist approach to constitutional interpretation, and a textualist approach to statutory interpretation. Given their revolutionary mission, these jurists are perfectly willing to overrule past precedents — which, in their view, not only are erroneous but were decided using interpretive methods that these jurists consider illegitimate and, indeed, took office intending to overthrow. In other words, rejecting old precedents does not bother these textualist revolutionaries because it is part and parcel of their agenda to depose the old jurisprudential regime.
Whereas some state courts appear to be comprised of a solid bloc of jurists who fit this “revolutionary” bill, the justices on the U.S. Supreme Court seem to fall along a scale, or spectrum, in their commitment to a textualist-originalist revolution. At one end of the spectrum is Thomas, who regularly calls for overruling both statutory and constitutional precedents. Scalia was next on the spectrum, with Justice Samuel Alito and Chief Justice John Roberts a little further down the scale, along with former Justice Anthony Kennedy. Although it is too early to make definitive assessments, Justice Neil Gorsuch appears to be closer to Thomas’ end of the spectrum than to Alito’s or Roberts’ end, and Justice Brett Kavanagh may be as well. This now gives the court at least two solid revolutionaries and a five-justice majority that is either strongly originalist and textualist or at least originalist- and textualist-leaning.
When similar majorities have overtaken state courts in the recent past, precedents have been upended with notable alacrity. In Michigan, for example, when a textualist majority was appointed to the state supreme court in 1998-1999, the court rapidly overruled numerous statutory precedents on the ground that the precedent interpretations were clearly “erroneous.” Indeed, during the newly constituted Michigan Supreme Court’s first five years (2000-2005), it overruled 61 precedents — compared to only 18 overrulings in the previous five-year period.
In short, we have heard this tune before from committed textualist and originalist jurists: Precedents that a newly minted majority deems clearly “incorrect” are fair game for a quick reversal, irrespective of stability and rule-of-law concerns. Thomas’ decision in Hyatt fits within this framework, in that the five justices who voted to overrule did so on the grounds that Nevada v. Hall was clearly “erroneous” and therefore undeserving of adherence. Moreover, the majority opinion contains language suggesting that its constitutional reading is consistent with an originalist interpretive methodology (“Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.”). In the textualist-originalist justices’ view, such certainty that a precedent got the constitutional question wrong provides sufficient reason to overrule, no matter how longstanding or settled the original decision. (“Stare decisis does not compel continued adherence to this erroneous precedent.”) Indeed, Thomas’ opinion laid bare the textualist-originalist justices’ jurisprudential priorities when it dismissed the plaintiff’s reliance-interest argument with the cursory comment that “in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question.” In other words, stability and predictability — and fairness to litigants who relied on the old rule established by the existing precedent — are secondary to accuracy, or the importance of getting to the “correct answer.”
Prior to 2018, the textualist and textualist-leaning justices on the Roberts Court, led by Thomas, called for overruling several statutory and constitutional precedents — but they only occasionally succeeded in garnering the votes necessary to overrule. Now that the court’s composition has changed — and at least one more seemingly committed textualist-originalist revolutionary has joined the court — it seems likely that we can expect more constitutional and statutory precedents that do not comport with these justices’ preferred originalist-textualist interpretive methodologies to be overruled, perhaps in quick succession.