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May 13, 2019 12:41 PM UTC

Conservative Majority on Supreme Court Sharpens its Eraser

  • 8 Comments
  • by: Colorado Pols
Neil Gorsuch and Sen. Cory Gardner (R-Yuma) in 2017

The Supreme Court issued a ruling today that is a clear red alert about the potential for a later ruling that could overturn Roe v. Wade. From Slate.com:

On Monday, in a 5–4 ruling, the Supreme Court overturned a 40-year-old precedent for the simple reason that five conservative justices didn’t like it. The decision itself is unfortunate, allowing states to duck lawsuits filed against them in other states’ courts at the expense of wronged plaintiffs. But the most significant aspect of the ruling may be its cavalier treatment of precedent, which—as the dissenting justices noted in a not-so-veiled warning—signals how the majority seems to be laying the groundwork for the reversal of Roe v. Wade…

…Throwing 40 years of precedent out the window, [Justice Clarence] Thomas wrote that states have sovereign immunity from private lawsuits brought in courts of other states. Nevada courts thus have no authority to try the California board, a state agency, or impose penalties for its abuses. Hyatt is out of luck.

Thomas’ opinion is remarkable for two reasons. First, it fails to identify a specific provision in the Constitution to support this sweeping new grant of sovereign immunity. That’s because there is none. This new rule may please supporters of states’ rights—but as Justice Sonia Sotomayor noted at oral arguments, the Framers “didn’t put it in the Constitution.”

Brett Kavanaugh

As the Washington Post reports, Supreme Court Justice Stephen G. Breyer is pretty direct about his concerns about how this decision could affect other pending cases:

It is “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question,” Breyer wrote, adding: “Today’s decision can only cause one to wonder which cases the court will overrule next.” [Pols emphasis]

As Mark Joseph Stern notes for Slate.com, now-Justice Mark Kavanaugh touted the importance of legal precedent during his confirmation hearings last year; on Monday, Kavanaugh demonstrated that his beliefs about “precedence” were little more than words.

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8 thoughts on “Conservative Majority on Supreme Court Sharpens its Eraser”

  1. And I will always remember that moron, Susan Collins, going off about how Brett Kavanaugh respects precedent.

    Yeah, as any first year law student knows, trial and intermediate appellate courts are required to respect Supreme Court precedent. And at the time, Kavanaugh was an intermediate appellate court judge. The Supreme Court justices, not so much. 

    For better or worse, the only respect for precedent which Supreme Court justices have is a matter of self-restrain.

    Thank you Susan Collins and Bernie Bros, for giving us Gorsuch and Kavanaugh. 

    1. Funny, how every stupid, mean-spirited and evil thing the GOP does is always somehow the Democrats' fault.  

      Are the GOP really that spineless and ineffectual, that they can do nothing on their own? 

    1. They are not mythical. They can be quantified. There was exit polling conducted in the three critical states that showed a sufficient number of Sanders primary supporters flipping to Trump in the general to give him the electoral votes in those three states.

      The worst is yet to come. Trump is saving Amy Coney Barret as Ginsburg's replacement.

      Well, at least we have the Bronx bartender and Bernie calling Biden out as a climate denier and delayer yesterday.

  3. The 11th Amendment, which has always been interpreted to have a meaning much broader than its express text, has always been the main constitutional justification for state sovereign immunity. Its language merely disallows certain kinds of suits against states as a separate basis for bringing suits in federal courts, but the conservatives in this case expanded the rule to the courts of sister states, just as much earlier the 11th Amendment was expanded to state sovereign immunity in their own courts and in federal question cases.

    It does overturn 40 years of precedent, but it is not completely unmoored from any constitutional source as Slate suggests.

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