Courthouse Steps: Supreme Court Overrules Nevada v. Hall Establishing Sister State Sovereign Immunity

Federalism & Separation of Powers Practice Group

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In Franchise Tax Board of California v. Hyatt, the Supreme Court has overturned a 40-year-old precedent in a case that changes the relationship between the states in our federalist structure of government. Indiana Solicitor General Fisher was counsel of record for an amicus brief of 44 states asking the Court to overturn Nevada v. Hall. In the Franchise Tax Board case, California believed that Gilbert Hyatt had evaded California taxes by falsely claiming to have moved to Nevada before he did. The California officials entered Nevada and Hyatt alleges that they committed fraud and other torts against him while in Nevada. He sued those California officials in Nevada’s courts and won almost a half billion dollar award (although that was later reduced to about a hundred thousand dollars). But is it proper for one state to sit in judgment on the official actions of officers of other states? Nevada v. Hall allowed this, but the Supreme Court has now decided that states are constitutionally required to give other states’ official acts sovereign immunity even when it occurs within the "host" state’s borders. Solicitor General Fisher will explain why and implications for this case to the future of the law.

Featuring:

Hon. Thomas Fisher, Solicitor general, Indiana

Mr. Devin Watkins, Competitive Enterprise Institute

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Thursday, May 23, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is  a Courthouse Steps decision teleforum on the Supreme Court case Franchise Tax Board of California v. Hyatt. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Devin Watkins, who is an attorney at the Competitive Enterprise Institute. Devin will shortly be introducing his fellow speaker. After our speakers give their remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Devin, the floor is yours.

 

Devin Watkins:  Hi. As I mentioned, we're going to be focusing our discussion today on Franchise Tax Board of California v. Hyatt. Let me give you a little bit of background about this case. Hyatt had lived in California and made a lot of money there, but he eventually decided he wanted to move out of the high-tax California to Nevada. However, California believed that he had moved to Nevada after he had actually claimed. And so California sent a variety of investigators to investigate this, and they sent those investigators into Nevada. They did things like go through his trash, talk to this acquaintances and family, and other things. And according to Hyatt, while they were in Nevada, they committed a variety of torts, including fraud. As such, Hyatt sued the agents of California in Nevada's courts.

 

      Now, the prior precedent of Nevada v. Hall allowed this in that it considers sovereign immunity to be a mere matter of comity, something that the states could choose and usually would allow their other sister states to have sovereign immunity, but it wasn't something that was required. In this case, Nevada refused to recognize the sovereign immunity of California, and the Supreme Court has now overturned that precedent to require that the sovereign immunity of other states be recognized in that state court.

 

      To discuss this opinion, we have Thomas Fisher. He is the Solicitor General of Indiana. In that role, he handles a variety of high-profile litigations for the state, including the state's supreme court docket. Fisher has argued several times before the Supreme Court, most recently in Timbs v. Indiana on the incorporation of the excessive fines clause. In this case, Solicitor General Fisher was counsel of record for 44 states in an amicus brief that successfully sought to have Nevada v. Hall overturned. Solicitor General Fisher, if you could just let us know what your thoughts are on this opinion?

 

Hon. Thomas Fisher:  Oh, thanks so much. It's great to be with everybody, and thanks for tuning in. So a bit of background first about Nevada v. Hall, just so everybody understands kind of the origins of that case and, ultimately, how we got to a case that finally gave the Court a chance to revisit it. In Hall, there were residents of California who sued the State of Nevada in California state courts for negligence when a Nevada-owned car, driven by a Nevada employee on official business in California, collided with the plaintiffs. The plaintiffs in that case won a jury award of $1.1 million against Nevada, and the Supreme Court in Nevada v. Hall in 1979 held that Nevada was not immune from that judgement.

 

      So I suppose, turnabout being fair play, now we have California being sued in the courts of Nevada. And this is, in fact, the third time that this particular case has reached the Supreme Court. It began in the early ‘90s based on this tax dispute from an inventor who had moved from California to Nevada, and there were disputes about the timing of that move. It's also worth noting that the tax deficiency that California asserted against Hyatt remains pending in the California administrative system, in the tax court system in California. And so this lawsuit is not directly about the tax assessment itself but about the injuries that flowed from the investigation that California undertook in the State of Nevada.

 

      So Hyatt had sued California in Nevada for a variety of torts that he alleged had occurred during that investigation. California had originally asserted complete immunity based on California law. But Nevada decided to apply its own immunity law which permitted only partial immunity against unintentional torts and not intentional torts. On the first trip of this case to the U.S. Supreme Court, the Court approved Nevada's application of its own immunity law rather than the California immunity law as a matter of full faith and credit.

 

      On remand, a jury awarded Hyatt damages that with prejudgment, interest, and costs amounted to $490 million. The Nevada Supreme Court on appeal then refused to apply to California the damages cap that would have applied if Nevada had been the defendant. In other words, if the State of Nevada had been a defendant in a tort case in its own courts, a $50,000 damages cap would have applied. But the Nevada Supreme Court refused to apply that to California.

 

      So on the second trip to the Supreme Court, the Court held that full faith and credit required the Nevada courts to afford California that same damages cap that Nevada would have received in the Nevada courts. And this was the decision that came down in 2016. But at that point, the Supreme Court had only eight members, and though it was asked to revisit Nevada v. Hall, it tied 4-4 on whether to overrule that case.

 

      So the case went back down to the Nevada Supreme Court once again, which applied the damages cap, but that gave one more opportunity for California to go back to the Supreme Court, which of course, now has a full complement of nine Justices. So they went back to the Court specifically to give it one more chance to revisit Nevada v. Hall, so the Court took the case for the third time.

 

      Now, in our brief for 44 states, Indiana argued that Hall was wrongly decided for reasons that really relate in many respects to both the reasoning of Hall itself and also doctrinal developments in the area of sovereign immunity since Hall was decided. The Court's embrace of the idea that sovereign immunity is about more than the text of the Eleventh Amendment and has to do with the understanding of the relationships among states and between states and the newly formed federal government at the Founding, all of which is not merely a matter of text but of history and structure, all of those elements have come into the sovereign immunity doctrine since Nevada v. Hall in a way that the Court in Hall did not really recognize or embrace.

 

      In the meantime, there have been several lawsuits around the country brought by private citizens against states in the courts of other states. And so we've seen than the comedy that the Court in Nevada v. Hall expected would basically become its own source of immunity for interstate lawsuits has not really taken hold in all cases. There have been damages claims, especially in the tax area, where states have been hailed into the courts of other states.

 

      So the Supreme Court in this case, in an opinion written by Justice Thomas, did overrule Nevada v. Hall and held that the state sovereign immunity in another state's courts was, in fact, integral to the structure of the Constitution. While the Court recognized that prior to the Founding, states would have afforded immunity to co-sovereigns as a matter of comity under the law of nations, the Constitution, while preserving critical aspects of sovereignty, including sovereign immunity, altered the relationship of the states to one another. Because the Constitution, in effect, requires states to treat one another as co-equal sovereigns, unlike the more open-ended law of nations, sovereign immunity is guaranteed from one state to another and is not merely left to comity.

 

      Now, there, of course, was a concern in reaching that conclusion raised by Hyatt and certainly reached by the dissent of Justice Breyer that the Court was not using specific constitutional text as an anchor for this understanding of sovereign immunity. Justice Thomas's majority opinion criticized what he called ahistorical literalism in regard to how the dissenting members of the Court and Hyatt were treating the understanding of sovereign immunity.

 

      The Court was embracing the idea that the structure of the Constitution itself, the restraints put on states in terms of how they could act vis-à-vis one another, that basically kept them from acting like completely independent nations, all factored into the idea that they were required to treat one another as co-equal sovereigns in a way that would not have been true among the law of nations. And these structural principles and the implied residual sovereignty, including sovereign immunity, all meant that the comity idea that was embraced in Hall was not sufficient to realize the expectations of the Framers of the Constitution.

 

      The Court also, of course, had to grapple with its stare decisis doctrine and had to come to grips with why that strong preference for adhering to the Court's precedents should be overcome in this circumstance. The Court, having explained why Hall was wrongly decided, having explained why it was not generally something that met the standard for continued reliance, also addressed why the assertion by Hyatt that there was an expectation of his to be able to rely on Hall and other litigants to be able to rely on Hall was not sufficient as a reason to uphold Nevada v. Hall going forward. The Court said, basically, that case-specific reliance interests are insufficient, that there's a broader interest in sort of more broad social reliance interest that could be relevant, but that those were not present here.

 

      As noted, Justice Breyer dissented for himself and three other colleagues. And he argued that absent a textual basis for securing interstate sovereign immunity, the pre-Founding treatment of sovereign immunity, as a matter of state-to-state comity, should remain the rule. This is particularly true, in his view, because state sovereignty and dignity interests rests on both sides of the case because a state is both a defendant in some cases, in these cases, and also is an adjudicator in these cases.

 

      So for example here, you've got Nevada has a sovereignty interest as the adjudicator while California has a sovereignty interest as the defendant. At the very least, he argued, the decision in Nevada v. Hall was at least plausibly correct, and there were insufficient grounds for overcoming the principle of stare decisis. He worried that the Court's willingness to overturn precedent in these circumstances will signal to litigants that they should urge the Court to overturn precedents with more frequency and that litigants and citizens alike will now have less certainty with respect to understanding the durability of the Court's precedents.

 

      So that's a summary of the Court's decision and the analysis of the majority and the dissent. So I think with that, I would be happy to discuss the case further or to take questions about it.

 

Micah Wallen:  All right, we'll now open up the line for audience questions. And while we let those line up, Devin, I'll kick it back over to you.

 

Devin Watkins:  So with the stare decisis decisions made here, do you think this is going to have substantial impact when the Court comes to reconsider Roe v. Wade?

 

Hon. Thomas Fisher:  The Court has so much flexibility when it comes to handling questions of stare decisis that I don't think that any one decision, this one or any other, is going to be kind of the guiding star on that. Indiana, in the Timbs case this term, had urged the Court to overrule a precedent called Austin, which we think was quite demonstrably wrong and has been essentially undermined by subsequent precedents, but the Court really showed no interest in going down that road in that case.

 

      So I think each time that this question comes before the Court, it's a new question. There are a variety of objective and perhaps subjective factors that go into the analysis, but I don't think that everybody in the future, if that question ever comes up before the Court, is going to say, "Oh my goodness, after Franchise Tax Board v. Hyatt, it's clear the Court has to overrule Roe or any other precedent." I think each case will come on its own merits, and the Court will look at the factors independently.

 

      While we're waiting, maybe I'll comment on, if it's okay, on one of Justice Breyer's observations. One that's intrigued me the most, I suppose, is that his observation that there are sovereignty interests on both sides of the sovereign immunity equation. And I certainly understand conceptually and abstractly why he says that.

 

      On the other hand, I think it's also worth observing that California itself, which was in the role of adjudicator in Nevada v. Hall, was the state asking for that case to be overturned? So certainly it did not see its own sovereignty interests safeguarded by the Hall decision. Furthermore, you've got 44 states on Indiana's brief here asking for Hall to be overturned, and no state brief on the other side, so I think that maybe tells us something about the relative weight of the sovereign interests, supposedly, on the other side of this issue.

 

      It's also worth observing that, for whatever reason, this seems to be -- the cases that come to the surface seem to involve Nevada and California an awful lot. And indeed, while the Court was looking at Franchise Tax Board v. Hyatt, Nevada itself was in front of the Court on a cert petition asking it to overturn Nevada v. Hall in a case called Nevada Department of Wildlife v. Smith, an odd situation there where a Nevada citizen had sued Nevada in a California court for liable that allegedly took place in California.

 

      Nevada, therefore, in that situation, was the defendant. And in Franchise Tax Board, it was the adjudicator. But clearly, the litigating officials for Nevada were of the view that its sovereignty interests were most demonstrably at stake in its role as a defendant. So I think that all of these factors kind of undermine, in many respects, Justice Breyer's assertion of an equal sovereign interest on both sides of the case.

 

Devin Watkins:  What avenues are still available for states in which a state enters a -- sends its agents to another state to purposefully cause mayhem, and destruction, and other kinds of problems in that state?

 

Hon. Thomas Fisher:  [Laughter] I don't think states -- I would resist the idea that states send their agents to do that. And to the extent that there are torts that are asserted, they could be asserted back in the state of offense, depending on the immunity laws. Most states have torts claims acts that permit claims to come in the door in their own state's courts. They may have damages caps. They may have other limits on liability. But for the most part, I think there's usually some avenue of relief that's available.

 

Micah Wallen:  Also, I had a question of my own, something Justice Breyer said regarding the case. I believe there was a quote that was widely circulated in the news that he said, "Today's decision can only cause one to wonder which cases the Court will overrule next." And in recent years, obviously, we've switched two Supreme Court Justice seats. Do you think that today's -- or I guess not today's, but this decision's willingness to overturn precedent in any way signifies sort of a shift in the Supreme Court in the last few years in terms of its willingness to do that, or is it a rare occurrence, and this is just one of those rare times?

 

Hon. Thomas Fisher:  Well, yeah. I think it's more the latter, and in part, the effort to try to get Hall overturned has been percolating for many, many years. And this is not just a decision that came out of the blue in that regard. This case itself has been up there three times, at least two of which squarely presented the Nevada v. Hall issue. I have vague memories of other cases raising the same issue where the Court was never able to reach it, but this is something that's been percolating for a while.

 

      I think the Court's -- what's more significant is I think the Court's sovereign immunity doctrine after Hall, between Hall and now, has developed so dramatically and has gone in such much different direction than it was in 1979 that this result was, in some respects, sort of a culmination of those earlier decisions. And so rather than a personnel issue, I think this is a doctrinal development issue.

 

Micah Wallen:  All right. Devin, did you have any further questions to expound on?

 

Devin Watkins:  So in this case, the majority opinion, the conservative majority opinion did not rely on any explicit textual foundation. I mean, there was another way to potentially read that is that they incorporated it into the word "state." Which way do you view that? And if there was no explicit textual foundation, if this was all implicit, how is this argument different than the kind of penumbras and emanations of Griswold?

 

Hon. Thomas Fisher:  Well, I think it's very different in the sense that when you're talking about sort of structural relationships among states and between states and the federal government, you are dealing with, I think, a completely different analytical scenario because you have what had to be balancing of sovereign interests at the Founding, some of which were retained, some of which were given up. And inevitably, that's going to require some interpretive effort to figure out which are retained, and which are given up.

 

      I mean, even, as the Court noted, the ability of the United States to sue states in federal court -- there's no explicit statement of text of any sort in the Constitution that permits that, but everybody understands that that is part of the plan of the Convention. And there are a whole host, as Justice Thomas goes through in his majority opinion, a whole host of rules governing those kinds of structural relationships. They're not textual, but they are historical. And that is, I think, a long recognized, legitimate way to treat the structural features of the Constitution.

 

      The individual rights scenario, I think, is very different where you're not talking about who exercises power in how governmental structures relate to one another, but instead, you're talking about the sort of shield against government power in totality and how that relates to specific instances in our history, and the history of England, and in the history of the Civil War amendments to the Constitution is a very different set of analytical concerns.

 

Devin Watkins:  How do you see kind of the ideas of natural law and what it means to be a sovereign to kind of inform the Court in this opinion?

 

Hon. Thomas Fisher:  Well, I mean, I think they plainly, as the Court has done over the centuries, has -- where are these natural law or other understandings of sovereignty curbed, and where are they permitted to flourish? We have a system everybody recognizes of multiple equal sovereigns, but the sovereignty of the states can't be as absolute as it would be among relationships among nations because of plan of the Convention and what has been yielded up to central government.

 

      And I think that this opinion is a recognition that that same sense of limits has to inform the relationship of states to one another, and that's why the comity that would prevail among nations is something that we have to enshrine as a requirement of equal recognition, of equal sovereignty because it doesn't make a lot of sense to say that we're united states as in a situation where we're not -- one state is not required to basically recognize the sovereignty of another, at least in some limited capacity.

 

      So the idea here that there is sovereignty, but it is limited. There are some components that are bound to prevail over others, is not a new issue. It's something the Court's grappled with for quite some time. But here, I think the idea of guaranteeing this equal treatment is completely consistent with the Court's doctrine, at least in the last several decades. So there's no new ground being broken here. I think it's just in some respects kind of reconciling the doctrine of sovereign immunity to what the Court has otherwise been doing with respect to the limits on sovereignty and the core interests of states as states in other areas.

 

Micah Wallen:  And we do have a question coming through now, so without further ado, we'll jump to that caller.

 

Prof. Ilan Wurman:  Hi. This is Ilan Wurman at Arizona State University. Thanks for the terrific discussion. I just wanted to push back a little on the proposition that there isn't sort of a textual basis for the Court's sovereign immunity, and sort of throw it out there for discussion.

 

      I don't think this exactly applies to the Hyatt case or the situation of Nevada v. Hall, as I'll explain in a second, but it's often thought that originalism somehow can't justify the Court's sovereign immunity cases, and I think that's wrong. And I think -- you all mostly hit on it, but I wanted to add a little more to the discussion. I think we have to remember that the Constitution assigns specific powers to the government. And that's sort of the way to look at it. The question isn't whether the Constitution itself preserves the states' sovereign immunity. The question is whether the Constitution itself did anything to aggregate that sovereign immunity or give Congress the power to aggregate that sovereign immunity.

 

      If sovereign immunity was this principle of law that was out there -- the Constitution didn't come out of thin air. It wasn't adopted on a tabula rasa. There was preexisting law out there, including the law of sovereign immunity. And so the question then becomes what in the Constitution gets rid of that sovereign immunity? Well, the only possible thing that aggregates it directly in the Constitution is the Article III jurisdictional heads, and that's granting the Court jurisdiction over suits between a state and a citizen of another state. And that's why the Court in Chisholm concluded that, well, we guess the Constitution aggregates the sovereign immunity of the states.

 

      And this was quickly overturned in the Eleventh Amendment. So once it's overturned in the Eleventh Amendment, what's left in the Constitution textually that aggregates this preexisting sovereign immunity? And the answer is nothing on its own, unless Congress is somehow given the power to do it. Congress doesn't have an express power to do it, so it must be a necessary and proper power. The problem there is, of course, the necessary and proper clause has only granted implied powers which can't be, as Chief Justice Marshall said in McCulloch, they can't be great and substantive and independent powers, like the power to tax or the power to declare war. Those things have to be expressly enumerated.

 

      Well, so the question then becomes is Congress's power to aggregate sovereign immunity, is that an incidental implied power, or is that power too great and important such that it has to be explicitly given to Congress if Congress is going to be able to do it? And I think the way that the Founders reacted to Chisholm v. Georgia suggests aggregating sovereign immunity was a great substantive and independent power. So in terms of justifying the Supreme Court's decision in Alden v. Maine and Seminole Tribe, the question is whether Congress or the Constitution gives power to the national government, or in the Constitution itself aggregates its sovereign immunity. I think the answer is nothing there does that. That would be the argument. So it's very much consistent with textualism and originalism.

 

      I will just conclude by throwing it out there that I do think this case is harder. It's harder because it's one state against another state in state court. So it has nothing to do with Congress's powers. Congress didn't exercise power. It has nothing to do with Article III or the Eleventh Amendment. And so it's trickier. It's trickier. I mean, it's not clear to me that the Court's reasoning was right here in the sense that the Constitution preserved the sovereign immunity. I think the Constitution left sovereign immunity where it found it, the Founding. And Will Baude and Stephen Sachs have a good amicus brief that they filed in the case where they basically said it would have been left to the law of judgement. In other words, Nevada could choose to grant California immunity if it wanted, as a matter of comity. But if it didn't, California could refuse to enforce the judgement. And so in effect, we kind of get the same thing, but it would be up to the Court to decide.

 

      So I just wanted to throw those thoughts out there because it's often thought that somehow the sovereign immunity cases aren't justified by regionalism. And there are decent arguments for it that I wanted to throw out there. I don't really have a question, just that comment, but I'll stop now.

 

Hon. Thomas Fisher:  I don't think that -- thank you for those comments. That's all very insightful, and I think you definitely crystalized kind of the difficulty in this case. And I think one of the things that's most interesting about it is you don't really have a fight over whether this is a matter of originalism or not. It's over two different versions of originalism, Breyer basically saying, "Yeah, you leave it as you found it, and we found it as a matter of comity," and Thomas for the majority saying, "Well, no. You have to take into account what it meant to have a Constitution, what it meant as an original matter to have this kind of odd system where we have some aspects of sovereignty that remain in place and some that have to be given up."

 

      And I think the significance of the precedents since Nevada v. Hall has been to give more heft to kind of those structural implications, things like the meaning of the plan of the Convention and the contours of what the states gave up and what they retained as sovereigns at the Founding, I think those dimensions of the overall doctrine of sovereign immunity were not as well developed or as well respected, I should say, perhaps, when Nevada v. Hall was decided. And that doctrinal development since then is, I think, in many respects what led to the, ultimately, to this decision.

 

Devin Watkins:  As a matter of comity, that's the way that sovereign immunity was before the Constitution. So something had to have changed during the enactment of the Constitution for what the Court said today to be accurate because something has changed. It's more than just, "We left it the way that it was." And I wonder if he had mentioned the Sachs amicus brief, that would have shifted the decision after the judgement of the other court to the enforcement of that opinion of the other court so that the sister court would be free to basically ignore the opinion against it. In what way do you think that would be better or worse than the system that the Court held today, or in this case?

 

Hon. Thomas Fisher:  If you're asking me, I guess my reaction to that is if ultimately, this is a matter of these state decisions, sort of the defendant state's decision about whether a) to permit itself to be sued in another state's court, or b) whether it's going to enforce another state court's judgement at home, I'm not sure why we say that that thing has to play out and waste all the resources that would have to be wasted to get to the point of the enforcement of the judgement, because, really, that's what this comes down to.

 

      I mean, there's no question that a state -- at least, I wouldn't think there was a question that a state could say, "Well, you know, we don't mind being sued in another state's courts. We'll waive our sovereign immunity if that arises and everybody can know that in advance." But that not having happened, it seems to me kind of an odd thing to say, "Well, we're going to wait until -- we're going to let all this percolate through the system of the adjudication state's courts, and then we're going to let the defendant's state decide at the end whether it's going to enforce the judgement." It's sort of an odd, I think, an odd arrangement to have that.

 

      And I think in terms of what's in the Constitution to change that kind of original posture of this being a matter of comity that Justice Thomas goes through, and he talks about how states have had to give up the traditional diplomatic and military tools that would kind of fortify its ability to deal with other states, to, in some respects, create incentives for that comity. If you don't have those traditional tools available, then the reliance on comity is, I think, comes less of -- a less powerful way to think about this issue. You strip away all those other tools that independent nations would ordinarily have, and you have to have some other way of making the states play nice with each other. And here, it's just a matter of ensuring that equal treatment, that equal recognition of sovereignty.

 

Micah Wallen:  Devin, I'll kick it back over to you.

 

Devin Watkins:  Why do you think this Court opinion split 5-4 with the conservatives primarily in the majority and the liberals primarily in the dissent?

 

Hon. Thomas Fisher:  Boy, who knows? I guess in general, I think what we see over the sovereign immunity cases over the last couple of decades is generally a conservative/liberal split with conservatives generally favoring state sovereign immunity and liberals generally not favoring it. You have some variation on that in Nevada v. Hibbs, for example, where Rehnquist joined the majority and wrote the majority opinion. But it's not that surprising if you just think of it in terms of who generally favors sovereign immunity and who doesn't.

 

      Plus, I think when you factor in the stare decisis question, that probably reinforces some of those splits anyway. Justice Thomas, of course, in general, is the leading conservative when it comes to rectifying what he views as wrongly decided precedents. He's kind of created the idea of being willing to overturn constitutional based precedents as a, in some respects, a conservative view of constitutional decision making. Whether that's a legitimate way to think about it, I'll leave to others to discuss. But certainly, I think we tend to associate that with Justice Thomas as a conservative leader. And so maybe the stare decisis question kind of reinforced some of the left/right impulses that already existed with respect to sovereign immunity.

 

Devin Watkins:  So we know that Thomas in one that wants to overturn precedent that he sees as bad, and some of the other conservative Justices on the Court are not as willing to overturn precedent as quickly. How do you see the two new Justices, Gorsuch and Kavanaugh? Are they more in the Thomas wing or more respectful of stare decisis, comparatively?

 

Hon. Thomas Fisher:  Well, at least in this case, they were in the Thomas wing, I guess. In general, I guess I don't have a fixed sense or a strong sense of where they are on this. There have been other cases, I think, where they've certainly not been enthusiastic about overturning precedent, including, as I mentioned in Timbs, but I think the willingness to do it when the rationale is powerful enough, certainly they're open to it. So I regret I don't have a well-developed sense of their individual proclivities towards stare decisis at this point.

 

Micah Wallen:  All right. And since there are no other questions in the queue, I'll throw it over to you, Tom. Did you have any closing remarks for us?

 

Hon. Thomas Fisher:  No, not really. I think I've had a chance to kind of say my piece. But thank you for having me. I think this is a fascinating decision, but one that in many respects is an outgrowth of the Court's sovereign immunity doctrine as it's developed over the last 20 years, and, I think, should not surprise us or, I think, probably is not entitled to some of the criticism and weight that others have given it as some kind of bellwether of a larger doctrinal development outside of sovereign immunity. So that's kind of always been our view of this case and of this issue, that it's an outgrowth of some of those precedents of more recent decades, and I think we just need to keep it at face value.

 

Devin Watkins:  Well, I want to thank you very much for coming to speak with us.

 

Hon. Thomas Fisher:  Well, thanks for having me. I really appreciate it.

 

Micah Wallen:  And on behalf of The Federalist Society, I want to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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