Staring Down 'Stare Decisis': How to Ask SCOTUS to Overturn Precedent

[Elderberry]

 The National Law Journal  By Tony Mauro May 15, 2019

Tread softly and don’t raise the issue on the first page, according to veteran U.S. Supreme Court advocate Paul Clement.

The U.S. Supreme Court’s decision May 13 in Franchise Tax Board of California v. Hyatt seemed to open the public’s eyes to a long-running reality: The high court does sometimes overrule its own opinions and is likely to do so in the future.

By the count of a Congressional Research Service report updated last September, the court has explicitly overruled past opinions 141 times since 1851. During his confirmation hearing in 2005, Chief Justice John Roberts Jr. famously said that overturning precedents is “a jolt to the legal system,” but he added that sometimes, “there are situations when that’s a price that has to be paid.”

Whether or not the court’s 5-4 vote in the Hyatt case was one of those situations is uncertain. The majority opinion overturned Nevada v. Hall, a fairly obscure ruling that allowed states to be sued by individuals in other states. But Justice Stephen Breyer’s dissent made it clear that he and three other court liberals thought this departure from stare decisis—the doctrine that favors preserving precedents—was surely a jolt.

To overturn Nevada, Breyer wrote, “is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.” Justice Clarence Thomas, writing in the majority and defending the court’s action, declared that stare decisis is “not an inexorable command.”

More: https://www.law.com/nationallawjournal/2019/05/15/staring-down-stare-decisis-how-to-ask-scotus-to-overturn-precedent/