SCOTUS Potpourri

It’s amusing, this “sovereignty” stuff with states and whatnot.

So on Monday you have the SCOTUS overruling its previous decision that the constitution did not require one state’s courts to grant sovereign immunity to another state.  Now we know that the constitution does so require.

That was the only question.  Not, dear reader, whether it’s a good idea for one state to extend sovereign immunity to another, which it usually does as a matter of comity; but rather, whether the constitution requires a state to do that.

One thing that makes this so amusing is the incoherence of it all.  44 states joined in an amicus brief that waxed poetic about the various blessings of the sovereignty of the states, the “insult to sovereign dignity” when one state is “haled” into another state’s courts, and so on (see the summary of the argument, p. 2).

As a practical matter, having 44 states on one side of the question is a strong argument that you might as well go along with them.  That’s only 6 states that haven’t weighed in.  That’s almost 90% of the litigants with the most at stake.

On the other hand, what they’re actually asking for is a limitation on state sovereignty.  Whereas before every state had the power to grant or not grant immunity to another state in its courts, now that attribute of sovereignty has been denied them:  they gave it up when they joined to union, we guess.

Why didn’t the states bribe lobby Congress for legislation under the commerce clause to address their complaints, rather than seek a constitutional ruling from the SCOTUS limiting their own sovereignty even as they pretended to assert it?  Cheaper, we suppose.

In any case, no one on the SCOTUS got that point.  Another reason SCOTUS Justices should probably be consulting us before making their rulings.

We jest, of course.

What really animates the decision, it seems, is the reflexive hostility to the little people we have occasionally noted.  “States all too frequently find themselves the target of private-plaintiff lawsuits filed in the courts of other States.”  That’s the real sales pitch the 44 states make in their amicus brief.  That’s the actual hook the 5 Justices in the majority bit on.

Those grubby “private-plaintiff lawsuits”.  Nobody likes them, right?

So what is the significance otherwise?  The talking heads focus on the last line of the dissenting opinion, Justice Breyer’s musing about the sanctity of precedent.  He’s anticipating a run at Roe v. Wade, or at least this is what the talking heads think he’s doing.  It’s certainly what the talking heads are doing.

To the talking heads, the only SCOTUS thing that really matters is Roe v. Wade.  Defensiveness is always revealing, no?

In any event, we can see the point.  After Hyatt, the 5 in the majority go on a state sovereignty binge and overturn Roe on that basis.  Maybe other cases in the same vein, too, like the gay marriage case (Obergefell).  Let the states work it out on their own, these contentious things like abortion and gay marriage.  Like they were already doing before Roe.  Like they were already doing before Obergefell.

Could that get interesting?  Certainly.  It’s about time we had a little fun around here.

Alabama goes one way and New York goes the other.  Let them have their way.  See who prospers and who doesn’t.

Sometimes the cases the SCOTUS decides are really about something else.  Actually, a lot of times, it seems.





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