Justice Breyer Fired The First Shot

It’s one thing to read tea leaves and claim they foretell the future. It’s possible. Maybe even probable, though it takes more than tea leaves to overcome the threshold of possibility and achieve probability. Justice Stephen Breyer’s dissent in Franchise Tax Board of California v. Hyatt may be the piece that pushes fear over the edge.

For UC-Irvine prawf Leah Litman, however, clawing from possible to probable isn’t fearful enough.

The Supreme Court made clear on Monday that Roe v. Wade may soon no longer be the law of the land.

Sure, she wrote “may soon,” but she also wrote “made clear.” Much as that could be chalked up to poor editing, the latter was always the case, as it’s always possible that a decision could be reversed or modified. That’s the nature of law. So writing “may soon” is only meaningful as a time frame, whereas “made clear” is why Litman writes now. The fear is upon us. The fear is what the Court held in this decision having absolutely nothing to do with abortion.

In Hyatt, the justices were asked to overrule the court’s 1979 decision in Nevada v. Hall, which held that an individual could sue a state in the courts of a different state.

Not a particularly sexy legal issue, and one that almost no person willing to dedicate their heart and soul to protect access to abortions would lose sleep over. But cert was granted in a case that would otherwise be uncert worthy because the issue had already been decided. This meant stare decisis already answered the question. Or should have.

The doctrine of stare decisis directs judges, including Supreme Court justices, to adhere to prior decisions even when they think those prior decisions are wrong. Under the doctrine, justices shouldn’t overrule an earlier ruling unless several things are true: The decision is unworkable and has generated inconsistent results; it rests on outdated facts; and it represents an outdated mode of legal thinking. The court is also not supposed to overrule precedent where parties have relied on the decision to structure their lives.

Yet, the Supremes, in a 5-4 split, reversed its own precedent, even though, as Breyer argued in a dissent joined by Ginsburg, Sotomayor and Kagan, there was little, if any, need to reverse, and little, if any, textualist justification for change.

In Hyatt, however, the five conservative justices based their decision to overrule the earlier decision almost exclusively on their belief that it was an “erroneous precedent” that “is contrary to our constitutional design.” The justices’ lack of respect for precedent was evident in the amount of space the majority opinion devoted to stare decisis — a mere three paragraphs — and in what the court said about it.

Litman’s “three paragraph” test is silly and disingenuous, though people seize upon whatever they can to make their pitch, particularly when it’s made to people who haven’t a clue about how ridiculous the argument is. The discussion need only be as long as needed.* Was Brown v. Board of Ed. an insignificant case because the opinion was thankfully brief?

Justice Breyer is not one for over-the-top prose, but his dissent is full of alarm bells. He wrote that the majority had “surrendered to the temptation to overrule” a “well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” And he accused the majority of taking the “dangerous” path of overruling a decision “only because five members of a later court come to agree with earlier dissenters.” He too seems to have prewritten an opinion — a dissent — for when the court overturns Roe.

While the connection of Breyer’s dot with Roe may be penned in invisible ink, Litman’s point about Breyer’s alarm bells can’t be denied. Nor can her point that modesty, humility and reliability all strongly militate against a new-found majority willy-nilly reversing otherwise-viable precedent just because the new justices disagree with it. This is obvious. Stability in the law is necessary so we can make decisions on how to conduct our affairs, our lives.

And change in the law matters as well, for without it we would still be living under Plessy v. Ferguson rather than Brown, and, I hasten to note, there would be no Roe v. Wade.

So which is it, blithely ignoring stability or correcting past errors?

In Hyatt, Justice Breyer concluded his dissent with this pointed warning: “Today’s decision can only cause one to wonder which cases the court will overrule next.” If that statement was not enough, Justice Breyer cited Planned Parenthood v. Casey in that same paragraph. Casey is the 1992 decision in which a bare majority of the court opted not to overrule Roe.

Justice Breyer threw the bomb into the opinion, both by the seeds of doubt sown in his words and the cite to Casey. This doesn’t mean Roe/Casey is about to be reversed, assuming an appropriate case makes it onto the Court’s docket, because the so-called conservative wing of the Court now has the votes to do so, but it surely turns the fear dial past five and a half.

In the third and final paragraph on stare decisis, the justices said that the reliance of some parties on the prior decision was insufficient to “persuade us to adhere to an incorrect resolution of an important constitutional question.” Women who have structured their lives around being able to decide when and whether to have a child should take note.

Stability is a critical concern, but not the only concern. Yet, if the best argument Litman can muster is that women have “structured their lives” around abortion as a family planning tool, she’s cheapened it immensely. One of the reasons abortion has remained so controversial, despite Roe v. Wade being decided 46 years ago, is that its foundation in substantive due process was one of the least legal, and most political, of decisions the Court reached. And the current fight against any limitation, from viability to post-birth abortion, fuels further controversy rather than quiets it.

But Hyatt wasn’t about abortion, and Breyer’s infusing his dissent with fear that stare decisis won’t save Casey could mean nothing other than his putting fear of reversal on the front burner.  At grave risk to the “least dangerous branch,” Breyer just fired the first pre-emptive shot. Whether he was right to do so is impossible to say, but he made his decision and it’s now there on the page, in black and white. Stare decisis.

*A question was asked on my law school application, “How many hours per day will you study?” I responded, “How long must a man’s legs be?” It was stupid then. It’s stupid now.

15 thoughts on “Justice Breyer Fired The First Shot

  1. Richard Kopf


    After putting my heart and soul into the two partial birth abortion decisions that ruled for a doctor who did abortions and that ultimately reached the Supreme Court, I have recused myself from further abortion litigation. Consequently, I can comment on the substance of abortion litigation in the Supreme Court.

    Two brief comments:

    1. The idea of precedent in the Supreme Court is different than the idea of precedent in the lower courts. (I once wrote a law review article on the subject.) For the lower courts, precedent is obligatory. Fairly apply it and let the chips fall as they may. In the Supreme Court, one can make a strong argument that the Court must overrule its own precedents when they are mistaken, most particularly in constitutional litigation. So, there is nothing illegitimate in the Supreme Court overruling Roe or Casey or any other case if the majority concludes that they were wrongly decided. Of course, the decision to overrule should not be taken lightly because that can be seen as blatantly political and the institutional legitimacy of the Court called into question. But the Constitution does not call forth, and indeed rejects, the notion that, once decided, a case–any case–must be viewed as sacrosanct. It is the Constitution that matters and not the precedent.

    2. Anybody with a brain (like Justice Ginsburg) knows that Roe was a mistake for a wide variety of reasons. Since Roe, the Court has continually shot itself in the foot by vacillating back and forth–tinkering as it were in the margins. Roe was mostly a legal mistake because it was predicated upon the notion of privacy (nowhere found in the Constitution) and not equal protection. Moreover, the definition of life and the balancing of the interests of the woman is a quintessentially legislative function. Casey was even worse. It was like an arbitration decision in a labor case where the baby (forgive me) was split down the middle. It certainly wasn’t law.

    I don’t want Roe and Casey reversed. But my desire is only a personal policy preference. If the Court decides to do so, the decision almost writes itself. The Court should have never entered the thicket–at least in the way it did–and it may be time for some honesty. A simple “We screwed up!” would be refreshing.*

    All the best.


    * If the Supremes does blow up Roe and others, I wish they would please get at it soon. Too many district and appellate judges are devoting their time and talent to such issues only to have an earthquake entirely change the landscape. I have been there and suffered that. Hence, I know whereof I speak.

    1. SHG Post author

      As we’ve discussed this before, we both agree it’s the right policy choice and a very badly reasoned opinion. But they did it in 1973, for better or worse. to undo it now would wreak havoc, both with stability as well as institutional integrity. They fucked up, but would admitting it not be even more of a mistake?

      1. Richard Kopf


        Except when it comes to me, I am all for admitting one’s mistakes.

        More seriously, I don’t know the answer to your question. If I had to make the call, I would probably stand pat. But the counter is that the Court would be far better off as a matter of legitimacy to get out of the abortion business and let the state legislatures fight it out. You would get a patchwork, but the way the Court is going now–nibbling at the margins–you are getting a patchwork anyway.

        All the best.


        1. SHG Post author

          Had it been grounded in equal protection rather than the non-existent right to privacy, would there be no controversy? While equal protection at least has the virtue of being real, it’s still just a policy choice, favoring protection of the abortion-seeking woman over the viable fetus.

          1. Richard Kopf

            Equal protection analysis at least has a body of law to apply. In a sense, all law requires policy choices. The more a Court can use a regularly understood body of law as a foundation the more likely the decision will be seen, at least by the legal community and a well informed public, as more legitimate. You are nevertheless correct that there would have been controversy no matter the mode of analysis.

            All the best.


  2. Jay

    So the conservatives overrule precedent in a way that would have made Scalia blush and expand sovereign immunity and you say Breyer shot first… My I think your bias is showing again

          1. Jardinero1

            Dred Scott was rendered a nullity by the 13th Amendment. In theory, it is still binding precedent in the absence thereof.

            I read a paper which explained how statutes nullified by the courts, but remaining on the books, can become un-nullified as a consequence of subsequent court decisions. Thus, it is important to get those nullified laws off the books, lest they rear their ugly head again. Nine states still have their pre-Roe abortion laws on the books. Those laws would stand yet again if the court reverses Roe.

            The obverse of that could also be true with precedents that were subsequently nullified by legislative action. The law swings in wide arcs via legislative action. Dred Scott and Korematsu still stand. Given enough time and bad law, they could be relevant again.

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