Sunday, June 23, 2019

Candor in Supreme Court Opinions: A Skeptical Query

Mark Tushnet

Dissenting in Franchise Tax Board v. Hyatt, Justice Breyer commented on the majority's decision to overrule Nevada v. Hall: "Today's decision can only cause one to wonder which cases the Court will overrule next." Observers (correctly, in my view) took that as a signal that progressives should worry about the prospect that Roe v. Wade (or at least Whole Women's  Health) would be soon overruled. That opinion was published on May 13.

On January 1, 2019, the Court heard reargument in Knick v. Township of Scott, in which the core issue was whether to overrule Williamson County v. Hamilton Bank. On June 21, a majority did overrule Williamson County. It seems highly likely (the probability seems to me as close to 100% as you can get -- the most natural inference about why the case was reargued is that after the initial argument, without Justice Kavanaugh yet on the Court, the Court divided evenly on the question of overruling Williamson County) that Justice Breyer knew in May that Knick would do what it did. I wonder whether under the circumstances it was appropriate to frame the signal in terms of "wondering what comes next."

Two "qualifications": Until a decision is handed down there's always the possibility that someone will change -- in the case of Knick -- his vote, so technically Justice Breyer could indeed "wonder" what comes next. But, in light of the likely reason for reargument, that seems hypertechnical. And maybe alternative ways of sending the signal about Roe or Whole Women's Health would have been clumsier. Still, I do wonder whether Justice Breyer's comment was appropriately candid.

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