Franchise Tax Bd. of Cal. v. Hyatt

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT
CERTIORARI TO THE SUPREME COURT OF NEVADA
No. 17–1299. Argued January 9, 2019—Decided May 13, 2019
Respondent Hyatt sued petitioner Franchise Tax Board of California
(Board) in Nevada state court for alleged torts committed during a
tax audit. The Nevada Supreme Court rejected the Board’s argument
that the Full Faith and Credit Clause required Nevada courts to ap-
ply California law and immunize the Board from liability. The court
held instead that general principles of comity entitled the Board only
to the same immunity that Nevada law afforded Nevada agencies.
This Court affirmed, holding that the Full Faith and Credit Clause
did not prohibit Nevada from applying its own immunity law. On
remand, the Nevada Supreme Court declined to apply a cap on tort
liability applicable to Nevada state agencies. This Court reversed,
holding that the Full Faith and Credit Clause required Nevada
courts to grant the Board the same immunity that Nevada agencies
enjoy. The Court was equally divided, however, on whether to over-
rule Nevada v. Hall, 440 U.S. 410, which held that the Constitution
does not bar suits brought by an individual against a State in the
courts of another State. On remand, the Nevada Supreme Court in-
structed the trial court to enter damages in accordance with Nevada’s
statutory cap. The Board sought certiorari a third time, raising only
the question whether Nevada v. Hall should be overruled.
Held: Nevada v. Hall is overruled; States retain their sovereign immun-
ity from private suits brought in courts of other States. Pp. 4–18.
(a) The Hall majority held that nothing “implicit in the Constitu-
tion” requires States to adhere to the sovereign immunity that pre-
vailed at the time of the founding. 440 U.S., at 417–418, 424–427.
The Court concluded that the Founders assumed that “prevailing no-
tions of comity would provide adequate protection against the unlike-
ly prospect of an attempt by the courts of one State to assert jurisdic-
tion over another.” Id., at 419. The Court’s view rested primarily on
2 FRANCHISE TAX BD. OF CAL. v. HYATT
Syllabus
the idea that the States maintained sovereign immunity vis-à-vis
each other in the same way that foreign nations do. Pp. 4–5.
(b) Hall’s determination misreads the historical record and misap-
prehends the constitutional design created by the Framers. Although
the Constitution assumes that the States retain their sovereign im-
munity except as otherwise provided, it also fundamentally adjusts
the States’ relationship with each other and curtails the States’ abil-
ity, as sovereigns, to decline to recognize each other’s immunity in
their own courts. Pp. 5–16.
(1) At the time of the founding, it was well settled that States
were immune from suit both under the common law and under the
law of nations. The States retained these aspects of sovereignty, “ex-
cept as altered by the plan of the Convention or certain constitutional
Amendments.” Alden v. Maine, 527 U.S. 706, 713. Pp. 6–9.
(2) Article III abrogated certain aspects of the States’ traditional
immunity by providing a neutral federal forum in which the States
agreed to be amenable to suits brought by other States. And in rati-
fying the Constitution, the States similarly surrendered a portion of
their immunity by consenting to suits brought against them by the
United States in federal courts. When this Court held in Chisholm v.
Georgia, 2 Dall. 419, that Article III extended the federal judicial
power over controversies between a State and citizens of another
State, Congress and the States acted swiftly to draft and ratify the
Eleventh Amendment, which confirms that the Constitution was not
meant to “rais[e] up” any suits against the States that were “anoma-
lous and unheard of when the Constitution was adopted,” Hans v.
Louisiana, 134 U.S. 1, 18. The “natural inference” from the
Amendment’s speedy adoption is that “the Constitution was under-
stood, in light of its history and structure, to preserve the States’ tra-
ditional immunity from private suits.” Alden, supra, at 723–724.
This view of the States’ sovereign immunity accorded with the under-
standing of the Constitution by its leading advocates, including Ham-
ilton, Madison, and Marshall, when it was ratified. Pp. 9–12.
(3) State sovereign immunity in another State’s courts is inte-
gral to the structure of the Constitution. The problem with Hyatt’s
argument—that interstate sovereign immunity exists only as a mat-
ter of comity and can be disregarded by the forum State—is that the
Constitution affirmatively altered the relationships between the
States so that they no longer relate to each other as true foreign sov-
ereigns. Numerous provisions reflect this reality. Article I divests
the States of the traditional diplomatic and military tools that foreign
sovereigns possess. And Article IV imposes duties on the States not
required by international law. The Constitution also reflects altera-
tions to the States’ relationships with each other, confirming that
Cite as: 587 U. S. ____ (2019) 3
Syllabus
they are no longer fully independent nations free to disregard each
other’s sovereignty. See New Hampshire v. Louisiana, 108 U.S. 76,
90. Hyatt’s argument is precisely the type of “ahistorical literalism”
this Court has rejected when “interpreting the scope of the States’
sovereign immunity since the discredited decision in Chisholm.”
Alden, supra, at 730. Moreover, his argument proves too much.
Many constitutional doctrines not spelled out in the Constitution are
nevertheless implicit in its structure and supported by historical
practice, e.g., judicial review, Marbury v. Madison, 1 Cranch 137,
176–180. Pp. 12–16.
(c) Stare decisis is “ ‘not an inexorable command,’ ” Pearson v. Cal-
lahan, 555 U.S. 223, 233, and is “at its weakest” when interpreting
the Constitution, Agostini v. Felton, 521 U.S. 203, 235. The Court’s
precedents identify, as relevant here, four factors to consider: the
quality of the decision’s reasoning, its consistency with related deci-
sions, legal developments since the decision, and reliance on the deci-
sion. See Janus v. State, County, and Municipal Employees, 585
U. S. ___, ___–___. The first three factors support overruling Hall.
As to the fourth, case-specific reliance interests are not sufficient to
persuade this Court to adhere to an incorrect resolution of an im-
portant constitutional question. Pp. 16–17.
133 Nev. ___, 407 P.3d 717, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and ALITO, GORSUCH, and KAVANAUGH, JJ., joined. BREYER, J.,
filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN,
JJ., joined.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1299
_________________
FRANCHISE TAX BOARD OF CALIFORNIA,
PETITIONER v. GILBERT P. HYATT
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEVADA
[May 13, 2019]
JUSTICE THOMAS delivered the opinion of the Court.
This case, now before us for the third time, requires us
to decide whether the Constitution permits a State to be
sued by a private party without its consent in the courts of
a different State. We hold that it does not and overrule
our decision to the contrary in Nevada v. Hall, 440 U.S.
410 (1979).
I
In the early 1990s, respondent Gilbert Hyatt earned
substantial income from a technology patent for a com-
puter formed on a single integrated circuit chip. Although
Hyatt’s claim was later canceled, see Hyatt v. Boone, 146
F.3d 1348 (CA Fed. 1998), his royalties in the interim
totaled millions of dollars. Prior to receiving the patent,
Hyatt had been a long-time resident of California. But in
1991, Hyatt sold his house in California and rented an
apartment, registered to vote, obtained insurance, opened
a bank account, and acquired a driver’s license in Nevada.
When he filed his 1991 and 1992 tax returns, he claimed
Nevada—which collects no personal income tax, see Nev.
Const., Art. 10, §1(9)—as his primary place of residence.
2 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
Petitioner Franchise Tax Board of California (Board),
the state agency responsible for assessing personal income
tax, suspected that Hyatt’s move was a sham. Thus, in
1993, the Board launched an audit to determine whether
Hyatt underpaid his 1991 and 1992 state income taxes by
misrepresenting his residency. In the course of the audit,
employees of the Board traveled to Nevada to conduct
interviews with Hyatt’s estranged family members and
shared his personal information with business contacts.
In total, the Board sent more than 100 letters and de-
mands for information to third parties. The Board ulti-
mately concluded that Hyatt had not moved to Nevada
until April 1992 and owed California more than $10 mil-
lion in back taxes, interest, and penalties. Hyatt protested
the audit before the Board, which upheld the audit after
an 11-year administrative proceeding. The appeal of that
decision remains pending before the California Office of
Tax Appeals.
In 1998, Hyatt sued the Board in Nevada state court for
torts he alleged the agency committed during the audit.
After the trial court denied in part the Board’s motion for
summary judgment, the Board petitioned the Nevada
Supreme Court for a writ of mandamus ordering dismissal
on the ground that the State of California was immune
from suit. The Board argued that, under the Full Faith
and Credit Clause, Nevada courts must apply California’s
statute immunizing the Board from liability for all injuries
caused by its tax collection. See U. S. Const., Art. IV, §1;
Cal. Govt. Code Ann. §860.2 (West 1995). The Nevada
Supreme Court rejected that argument and held that,
under general principles of comity, the Board was entitled
to the same immunity that Nevada law afforded Nevada
agencies—that is, immunity for negligent but not inten-
tional torts. We granted certiorari and unanimously
affirmed, holding that the Full Faith and Credit Clause
did not prohibit Nevada from applying its own immunity
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
law to the case. Franchise Tax Bd. of Cal. v. Hyatt, 538
U.S. 488, 498–499 (2003) (Hyatt I). Because the Board
did not ask us to overrule Nevada v. Hall, supra, we did
not revisit that decision. Hyatt I, supra, at 497.
On remand, the trial court conducted a 4-month jury
trial that culminated in a verdict for Hyatt that, with
prejudgment interest and costs, exceeded $490 million.
On appeal, the Nevada Supreme Court rejected most of
the damages awarded by the lower court, upholding only a
$1 million judgment on one of Hyatt’s claims and remand-
ing for a new damages trial on another. Although the
court recognized that tort liability for Nevada state agen-
cies was capped at $50,000 under state law, it nonetheless
held that Nevada public policy precluded it from applying
that limitation to the California agency in this case. We
again granted certiorari and this time reversed, holding
that the Full Faith and Credit Clause required Nevada
courts to grant the Board the same immunity that Nevada
agencies enjoy. Franchise Tax Bd. of Cal. v. Hyatt, 578
U. S. ___, ___–___ (2016) (slip op., at 4–9) (Hyatt II ).
Although the question was briefed and argued, the Court
was equally divided on whether to overrule Hall and thus
affirmed the jurisdiction of the Nevada Supreme Court.
Hyatt II, supra, at ___ (slip op., at 1). On remand, the
Nevada Supreme Court instructed the trial court to enter
damages in accordance with the statutory cap for Nevada
agencies. 133 Nev. ___, 407 P.3d 717 (2017).
We granted, for a third time, the Board’s petition for
certiorari, 585 U. S. ___ (2018). The sole question presented
is whether Nevada v. Hall should be overruled. 1
——————
1 Hyatt argues that the law-of-the-case doctrine precludes our review
of this question, but he failed to raise that nonjurisdictional issue in his
brief in opposition. We therefore deem this argument waived. See this
Court’s Rule 15.2; Arizona v. California, 460 U.S. 605, 618 (1983)
(“Law of the case directs a court’s discretion, it does not limit the
tribunal’s power”). We also reject Hyatt’s argument that the Board
4 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
II
Nevada v. Hall is contrary to our constitutional design
and the understanding of sovereign immunity shared by
the States that ratified the Constitution. Stare decisis
does not compel continued adherence to this erroneous
precedent. We therefore overrule Hall and hold that
States retain their sovereign immunity from private suits
brought in the courts of other States.
A
Hall held that the Constitution does not bar private
suits against a State in the courts of another State. 440
U.S., at 416–421. The opinion conceded that States were
immune from such actions at the time of the founding, but
it nonetheless concluded that nothing “implicit in the
Constitution” requires States “to adhere to the sovereign-
immunity doctrine as it prevailed when the Constitution
was adopted.” Id., at 417–418, 424–427. Instead, the
Court concluded that the Founders assumed that “prevail-
ing notions of comity would provide adequate protection
against the unlikely prospect of an attempt by the courts
of one State to assert jurisdiction over another.” Id., at
419. The Court’s view rested primarily on the idea that
the States maintained sovereign immunity vis-à-vis each
other in the same way that foreign nations do, meaning
that immunity is available only if the forum State “volun-
tar[ily]” decides “to respect the dignity of the [defendant
State] as a matter of comity.” Id., at 416; see also id., at
424–427.
The Hall majority was unpersuaded that the Constitu-
tion implicitly altered the relationship between the States.
In the Court’s view, the ratification debates, the Eleventh
——————
waived its immunity. The Board has raised an immunity-based argu-
ment from this suit’s inception, though it was initially based on the Full
Faith and Credit Clause.
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
Amendment, and our sovereign-immunity precedents did
not bear on the question because they “concerned ques-
tions of federal-court jurisdiction.” Id., at 420. The Court
also found unpersuasive the fact that the Constitution
delineates several limitations on States’ authority, such as
Article I powers granted exclusively to Congress and
Article IV requirements imposed on States. Id., at 425.
Despite acknowledging “that ours is not a union of 50
wholly independent sovereigns,” Hall inferred from the
lack of an express sovereign immunity granted to the
States and from the Tenth Amendment that the States
retained the power in their own courts to deny immunity
to other States. Ibid.
Chief Justice Burger, Justice Blackmun, and Justice
Rehnquist dissented.
B
Hall’s determination that the Constitution does not
contemplate sovereign immunity for each State in a sister
State’s courts misreads the historical record and misap-
prehends the “implicit ordering of relationships within the
federal system necessary to make the Constitution a
workable governing charter and to give each provision
within that document the full effect intended by the
Framers.” Id., at 433 (Rehnquist, J., dissenting). As Chief
Justice Marshall explained, the Founders did not state
every postulate on which they formed our Republic—“we
must never forget, that it is a constitution we are expound-
ing.” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819).
And although the Constitution assumes that the States
retain their sovereign immunity except as otherwise pro-
vided, it also fundamentally adjusts the States’ relation-
ship with each other and curtails their ability, as sover-
eigns, to decline to recognize each other’s immunity.
6 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
1
After independence, the States considered themselves
fully sovereign nations. As the Colonies proclaimed in
1776, they were “Free and Independent States” with “full
Power to levy War, conclude Peace, contract Alliances,
establish Commerce, and to do all other Acts and Things
which Independent States may of right do.” Declaration of
Independence ¶4. Under international law, then, inde-
pendence “entitled” the Colonies “to all the rights and
powers of sovereign states.” McIlvaine v. Coxe’s Lessee, 4
Cranch 209, 212 (1808).
“An integral component” of the States’ sovereignty was
“their immunity from private suits.” Federal Maritime
Comm’n v. South Carolina Ports Authority, 535 U.S. 743,
751–752 (2002); see Alden v. Maine, 527 U.S. 706, 713
(1999) (“[A]s the Constitution’s structure, its history, and
the authoritative interpretations by this Court make clear,
the States’ immunity from suit is a fundamental aspect of
the sovereignty which the States enjoyed before the ratifi-
cation of the Constitution, and which they retain to-
day . . . ”). This fundamental aspect of the States’ “invio-
lable sovereignty” was well established and widely
accepted at the founding. The Federalist No. 39, p. 245 (C.
Rossiter ed. 1961) (J. Madison); see Alden, supra, at 715–
716 (“[T]he doctrine that a sovereign could not be sued
without its consent was universal in the States when the
Constitution was drafted and ratified”). As Alexander
Hamilton explained:
“It is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its con-
sent. This is the general sense and the general prac-
tice of mankind; and the exemption, as one of the at-
tributes of sovereignty, is now enjoyed by the
government of every State in the Union.” The Feder-
alist No. 81, at 487 (emphasis deleted).
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
The Founders believed that both “common law sovereign
immunity” and “law-of-nations sovereign immunity” pre-
vented States from being amenable to process in any court
without their consent. See Pfander, Rethinking the Su-
preme Court’s Original Jurisdiction in State-Party Cases,
82 Cal. L. Rev. 555, 581–588 (1994); see also Nelson,
Sovereign Immunity as a Doctrine of Personal Jurisdic-
tion, 115 Harv. L. Rev. 1559, 1574–1579 (2002). The
common-law rule was that “no suit or action can be
brought against the king, even in civil matters, because no
court can have jurisdiction over him.” 1 W. Blackstone,
Commentaries on the Laws of England 235 (1765) (Black-
stone). The law-of-nations rule followed from the “perfect
equality and absolute independence of sovereigns” under
that body of international law. Schooner Exchange v.
McFaddon, 7 Cranch 116, 137 (1812); see C. Phillipson,
Wheaton’s Elements of International Law 261 (5th ed.
1916) (recognizing that sovereigns “enjoy equality before
international law”); 1 J. Kent, Commentaries on American
Law 20 (G. Comstock ed. 1867). According to the founding
era’s foremost expert on the law of nations, “[i]t does not
. . . belong to any foreign power to take cognisance of the
administration of [another] sovereign, to set himself up for
a judge of his conduct, and to oblige him to alter it.” 2 E.
de Vattel, The Law of Nations §55, p. 155 (J. Chitty ed.
1883). The sovereign is “exemp[t] . . . from all [foreign]
jurisdiction.” 4 id., §108, at 486.
The founding generation thus took as given that States
could not be haled involuntarily before each other’s courts.
See Woolhandler, Interstate Sovereign Immunity, 2006
S. Ct. Rev. 249, 254–259. This understanding is perhaps
best illustrated by preratification examples. In 1781, a
creditor named Simon Nathan tried to recover a debt that
Virginia allegedly owed him by attaching some of its prop-
erty in Philadelphia. James Madison and other Virginia
delegates to the Confederation Congress responded by
8 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
sending a communique to Pennsylvania requesting that
its executive branch have the action dismissed. See Letter
from Virginia Delegates to Supreme Executive Council of
Pennsylvania (July 9, 1781), in 3 The Papers of James
Madison, 184–185 (W. Hutchinson & W. Rachal eds.
1963). As Madison framed it, the Commonwealth’s prop-
erty could not be attached by process issuing from a court
of “any other State in the Union.” Id., at 184. To permit
otherwise would require Virginia to “abandon its Sover-
eignty by descending to answer before the Tribunal of
another Power.” Ibid. Pennsylvania Attorney General
William Bradford intervened, urging the Court of Common
Pleas to dismiss the action. See Nathan v. Virginia, 1
Dall. 77, 78 (C. P. Phila. Cty. 1781). According to Brad-
ford, the suit violated international law because “all sover-
eigns are in a state of equality and independence, exempt
from each other’s jurisdiction.” Ibid. “[A]ll jurisdiction
implies superiority over the party,” Bradford argued, “but
there could be no superiority” between the States, and
thus no jurisdiction, because the States were “perfect[ ly]
equa[l]” and “entire[ly] independen[t].” Ibid. The court
agreed and refused to grant Nathan the writ of attach-
ment. Id., at 80.
Similarly, a Pennsylvania Admiralty Court that very
same year dismissed a libel action against a South Caro-
lina warship, brought by its crew to recover unpaid wages.
The court reasoned that the vessel was owned by a “sover-
eign independent state.” Moitez v. The South Carolina, 17
F. Cas. 574 (No. 9697) (1781).
The Founders were well aware of the international-law
immunity principles behind these cases. Federalists and
Antifederalists alike agreed in their preratification de-
bates that States could not be sued in the courts of other
States. One Federalist, who argued that Article III would
waive the States’ immunity in federal court, admitted that
the waiver was desirable because of the “impossibility of
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
calling a sovereign state before the jurisdiction of another
sovereign state.” 3 Debates on the Constitution 549 (J.
Elliot ed. 1876) (Pendleton) (Elliot’s Debates). Two of the
most prominent Antifederalists—Federal Farmer and
Brutus—disagreed with the Federalists about the desir-
ability of a federal forum in which States could be sued, but
did so for the very reason that the States had previously
been “subject to no such actions” in any court and were not
“oblige[d]” “to answer to an individual in a court of law.”
Federal Farmer No. 3 (Oct. 10, 1787), in 4 The Founders’
Constitution 227 (P. Kurland & R. Lerner eds. 1987).
They found it “humiliating and degrading” that a State
might have to answer “the suit of an individual.” Brutus
No. 13 (Feb. 21, 1788), in id., at 238.
In short, at the time of the founding, it was well settled
that States were immune under both the common law and
the law of nations. The Constitution’s use of the term
“States” reflects both of these kinds of traditional immu-
nity. And the States retained these aspects of sovereignty,
“except as altered by the plan of the Convention or certain
constitutional Amendments.” Alden, 527 U.S., at 713.
2
One constitutional provision that abrogated certain
aspects of this traditional immunity was Article III, which
provided a neutral federal forum in which the States
agreed to be amenable to suits brought by other States.
Art. III, §2; see Alden, supra, at 755. “The establishment
of a permanent tribunal with adequate authority to de-
termine controversies between the States, in place of an
inadequate scheme of arbitration, was essential to the
peace of the Union.” Principality of Monaco v. Mississippi,
292 U.S. 313, 328 (1934). As James Madison explained
during the Convention debates, “there can be no impropri-
ety in referring such disputes” between coequal sovereigns
to a superior tribunal. Elliot’s Debates 532.
10 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
The States, in ratifying the Constitution, similarly
surrendered a portion of their immunity by consenting to
suits brought against them by the United States in federal
courts. See Monaco, supra, at 328; Federal Maritime
Comm’n, 535 U.S., at 752. “While that jurisdiction is not
conferred by the Constitution in express words, it is inher-
ent in the constitutional plan.” Monaco, supra, at 329.
Given that “all jurisdiction implies superiority of power,”
Blackstone 235, the only forums in which the States have
consented to suits by one another and by the Federal
Government are Article III courts. See Federal Maritime
Comm’n, supra, at 752.
The Antifederalists worried that Article III went even
further by extending the federal judicial power over con-
troversies “between a State and Citizens of another State.”
They suggested that this provision implicitly waived the
States’ sovereign immunity against private suits in federal
courts. But “[t]he leading advocates of the Constitution
assured the people in no uncertain terms” that this read-
ing was incorrect. Alden, 527 U.S., at 716; see id., at 716–
718 (citing arguments by Hamilton, Madison, and John
Marshall). According to Madison:
“[A federal court’s] jurisdiction in controversies be-
tween a state and citizens of another state is much ob-
jected to, and perhaps without reason. It is not in the
power of individuals to call any state into court. The
only operation it can have, is that, if a state should
wish to bring a suit against a citizen, it must be
brought before the federal court. This will give satis-
faction to individuals, as it will prevent citizens, on
whom a state may have a claim, being dissatisfied
with the state courts.” Elliot’s Debates 533.
John Marshall echoed these sentiments:
“With respect to disputes between a state and the citi-
zens of another state, its jurisdiction has been decried
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
with unusual vehemence. I hope no gentleman will
think that a state will be called at the bar of the fed-
eral court. . . . The intent is, to enable states to re-
cover claims of individuals residing in other states. I
contend this construction is warranted by the words.”
Id., at 555 (emphasis in original).
Not long after the founding, however, the Antifederal-
ists’ fears were realized. In Chisholm v. Georgia, 2 Dall.
419 (1793), the Court held that Article III allowed the very
suits that the “Madison-Marshall-Hamilton triumvirate”
insisted it did not. Hall, 440 U.S., at 437 (Rehnquist, J.,
dissenting). That decision precipitated an immediate
“furor” and “uproar” across the country. 1 J. Goebel,
Antecedents and Beginnings to 1801, History of the Su-
preme Court of the United States 734, 737 (1971); see id.,
at 734–741. Congress and the States accordingly acted
swiftly to remedy the Court’s blunder by drafting and
ratifying the Eleventh Amendment. 2 See Edelman v.
Jordan, 415 U.S. 651, 660–662 (1974); see also Federal
Maritime Comm’n, supra, at 753 (acknowledging that
Chisholm was incorrect); Alden, supra, at 721–722 (same).
The Eleventh Amendment confirmed that the Constitu-
tion was not meant to “rais[e] up” any suits against the
States that were “anomalous and unheard of when the
Constitution was adopted.” Hans v. Louisiana, 134 U.S.
1, 18 (1890). Although the terms of that Amendment
address only “the specific provisions of the Constitution
that had raised concerns during the ratification debates
and formed the basis of the Chisholm decision,” the “natu-
ral inference” from its speedy adoption is that “the Consti-
——————
2 The Eleventh Amendment provides: “The Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State.”
12 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
tution was understood, in light of its history and structure,
to preserve the States’ traditional immunity from private
suits.” Alden, supra, at 723–724. We have often empha-
sized that “[t]he Amendment is rooted in a recognition
that the States, although a union, maintain certain at-
tributes of sovereignty, including sovereign immunity.”
Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993). In proposing the
Amendment, “Congress acted not to change but to restore
the original constitutional design.” Alden, 527 U.S., at
722. The “sovereign immunity of the States,” we have
said, “neither derives from, nor is limited by, the terms of
the Eleventh Amendment.” Id., at 713.
Consistent with this understanding of state sovereign
immunity, this Court has held that the Constitution bars
suits against nonconsenting States in a wide range of
cases. See, e.g., Federal Maritime Comm’n, supra (actions
by private parties before federal administrative agencies);
Alden, supra (suits by private parties against a State in its
own courts); Blatchford v. Native Village of Noatak, 501
U.S. 775 (1991) (suits by Indian tribes in federal court);
Monaco, 292 U.S. 313 (suits by foreign states in federal
court); Ex parte New York, 256 U.S. 490 (1921) (admiralty
suits by private parties in federal court); Smith v. Reeves,
178 U.S. 436 (1900) (suits by federal corporations in
federal court).
3
Despite this historical evidence that interstate sovereign
immunity is preserved in the constitutional design, Hyatt
insists that such immunity exists only as a “matter of
comity” and can be disregarded by the forum State. Hall,
supra, at 416. He reasons that, before the Constitution
was ratified, the States had the power of fully independent
nations to deny immunity to fellow sovereigns; thus, the
States must retain that power today with respect to each
Cite as: 587 U. S. ____ (2019) 13
Opinion of the Court
other because “nothing in the Constitution or formation of
the Union altered that balance among the still-sovereign
states.” Brief for Respondent 14. Like the majority in
Hall, he relies primarily on our early foreign immunity
decisions. For instance, he cites Schooner Exchange v.
McFaddon, in which the Court dismissed a libel action
against a French warship docked in Philadelphia because,
under the law of nations, a sovereign’s warships entering
the ports of a friendly nation are exempt from the jurisdic-
tion of its courts. 7 Cranch, at 145–146. But whether the
host nation respects that sovereign immunity, Chief Jus-
tice Marshall noted, is for the host nation to decide, for
“[t]he jurisdiction of [a] nation within its own territory is
necessarily exclusive and absolute” and “is susceptible of
no limitation not imposed by itself.” Id., at 136. Similar
reasoning is found in The Santissima Trinidad, 7 Wheat.
283, 353 (1822), where Justice Story noted that the host
nation’s consent to provide immunity “may be withdrawn
upon notice at any time, without just offence.”
The problem with Hyatt’s argument is that the Consti-
tution affirmatively altered the relationships between the
States, so that they no longer relate to each other solely as
foreign sovereigns. Each State’s equal dignity and sover-
eignty under the Constitution implies certain constitu-
tional “limitation[s] on the sovereignty of all of its sister
States.” World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 293 (1980). One such limitation is the inability
of one State to hale another into its courts without the
latter’s consent. The Constitution does not merely allow
States to afford each other immunity as a matter of com-
ity; it embeds interstate sovereign immunity within the
constitutional design. Numerous provisions reflect this
reality.
To begin, Article I divests the States of the traditional
diplomatic and military tools that foreign sovereigns
possess. Specifically, the States can no longer prevent or
14 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
remedy departures from customary international law
because the Constitution deprives them of the independ-
ent power to lay imposts or duties on imports and exports,
to enter into treaties or compacts, and to wage war. Com-
pare Art. I, §10, with Declaration of Independence ¶4
(asserting the power to “levy War, conclude Peace, con-
tract Alliances, [and] establish Commerce”); see Kansas v.
Colorado, 185 U.S. 125, 143 (1902).
Article IV also imposes duties on the States not required
by international law. The Court’s Full Faith and Credit
Clause precedents, for example, demand that state-court
judgments be accorded full effect in other States and
preclude States from “adopt[ing] any policy of hostility to
the public Acts” of other States. Hyatt II, 578 U. S., at ___
(slip op., at 5) (internal quotation marks omitted); see
Art. IV, §1. States must also afford citizens of each State
“all Privileges and Immunities of Citizens in the several
States” and honor extradition requests upon “Demand of
the executive Authority of the State” from which the fugi-
tive fled. Art. IV, §2. Foreign sovereigns cannot demand
these kinds of reciprocal responsibilities absent consent or
compact. But the Constitution imposes them as part of its
transformation of the States from a loose league of friend-
ship into a perpetual Union based on the “fundamental
principle of equal sovereignty among the States.” Shelby
County v. Holder, 570 U.S. 529, 544 (2013) (emphasis in
original and internal quotation marks omitted).
The Constitution also reflects implicit alterations to the
States’ relationships with each other, confirming that they
are no longer fully independent nations. See New Hamp-
shire v. Louisiana, 108 U.S. 76, 90 (1883). For example,
States may not supply rules of decision governing “dis-
putes implicating the[ir] conflicting rights.” Texas Indus-
tries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641
(1981). Thus, no State can apply its own law to interstate
disputes over borders, Cissna v. Tennessee, 246 U.S. 289,
Cite as: 587 U. S. ____ (2019) 15
Opinion of the Court
295 (1918), water rights, Hinderlider v. La Plata River &
Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938), or the
interpretation of interstate compacts, Petty v. Tennessee-
Missouri Bridge Comm’n, 359 U.S. 275, 278–279 (1959).
The States would have had the raw power to apply their
own law to such matters before they entered the Union,
but the Constitution implicitly forbids that exercise of
power because the “interstate . . . nature of the contro-
versy makes it inappropriate for state law to control.” Texas
Industries, supra, at 641. Some subjects that were decided
by pure “political power” before ratification now turn on
federal “rules of law.” Rhode Island v. Massachusetts, 12
Pet. 657, 737 (1838). See Clark, Federal Common Law: A
Structural Reinterpretation, 144 U. Pa. L. Rev. 1245,
1322–1331 (1996).
Interstate sovereign immunity is similarly integral to
the structure of the Constitution. Like a dispute over
borders or water rights, a State’s assertion of compulsory
judicial process over another State involves a direct con-
flict between sovereigns. The Constitution implicitly
strips States of any power they once had to refuse each
other sovereign immunity, just as it denies them the
power to resolve border disputes by political means. In-
terstate immunity, in other words, is “implied as an essen-
tial component of federalism.” Hall, 440 U.S., at 430–431
(Blackmun, J., dissenting).
Hyatt argues that we should find no right to sovereign
immunity in another State’s courts because no constitu-
tional provision explicitly grants that immunity. But this
is precisely the type of “ahistorical literalism” that we
have rejected when “interpreting the scope of the States’
sovereign immunity since the discredited decision in
Chisholm.” Alden, 527 U.S., at 730; see id., at 736 (“[T]he
bare text of the Amendment is not an exhaustive descrip-
tion of the States’ constitutional immunity from suit”). In
light of our constitutional structure, the historical under-
16 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
standing of state immunity, and the swift enactment of
the Eleventh Amendment after the Court departed from
this understanding in Chisholm, “[i]t is not rational to
suppose that the sovereign power should be dragged be-
fore a court.” Elliot’s Debates 555 (Marshall). Indeed, the
spirited historical debate over Article III courts and the
immediate reaction to Chisholm make little sense if the
Eleventh Amendment were the only source of sovereign
immunity and private suits against the States could al-
ready be brought in “partial, local tribunals.” Elliot’s
Debates 532 (Madison). Nor would the Founders have
objected so strenuously to a neutral federal forum for
private suits against States if they were open to a State
being sued in a different State’s courts. Hyatt’s view thus
inverts the Founders’ concerns about state-court parochi-
alism. Hall, supra, at 439 (Rehnquist, J., dissenting).
Moreover, Hyatt’s ahistorical literalism proves too
much. There are many other constitutional doctrines that
are not spelled out in the Constitution but are neverthe-
less implicit in its structure and supported by historical
practice—including, for example, judicial review, Marbury
v. Madison, 1 Cranch 137, 176–180 (1803); intergovern-
mental tax immunity, McCulloch, 4 Wheat., at 435–436;
executive privilege, United States v. Nixon, 418 U.S. 683,
705–706 (1974); executive immunity, Nixon v. Fitzgerald,
457 U.S. 731, 755–758 (1982); and the President’s re-
moval power, Myers v. United States, 272 U.S. 52, 163–164
(1926). Like these doctrines, the States’ sovereign immun-
ity is a historically rooted principle embedded in the text
and structure of the Constitution.
C
With the historical record and precedent against him,
Hyatt defends Hall on the basis of stare decisis. But stare
decisis is “ ‘not an inexorable command,’ ” Pearson v. Cal-
lahan, 555 U.S. 223, 233 (2009), and we have held that it
Cite as: 587 U. S. ____ (2019) 17
Opinion of the Court
is “at its weakest when we interpret the Constitution
because our interpretation can be altered only by constitu-
tional amendment,” Agostini v. Felton, 521 U.S. 203, 235
(1997). The Court’s precedents identify a number of fac-
tors to consider, four of which warrant mention here: the
quality of the decision’s reasoning; its consistency with
related decisions; legal developments since the decision;
and reliance on the decision. See Janus v. State, County,
and Municipal Employees, 585 U. S. ___, ___–___ (2018)
(slip op., at 34–35); United States v. Gaudin, 515 U.S.
506, 521 (1995).
The first three factors support our decision to overrule
Hall. We have already explained that Hall failed to ac-
count for the historical understanding of state sovereign
immunity and that it failed to consider how the depriva-
tion of traditional diplomatic tools reordered the States’
relationships with one another. We have also demon-
strated that Hall stands as an outlier in our sovereign-
immunity jurisprudence, particularly when compared to
more recent decisions.
As to the fourth factor, we acknowledge that some plain-
tiffs, such as Hyatt, have relied on Hall by suing sovereign
States. Because of our decision to overrule Hall, Hyatt
unfortunately will suffer the loss of two decades of litiga-
tion expenses and a final judgment against the Board for
its egregious conduct. But in virtually every case that
overrules a controlling precedent, the party relying on that
precedent will incur the loss of litigation expenses and a
favorable decision below. Those case-specific costs are not
among the reliance interests that would persuade us to
adhere to an incorrect resolution of an important constitu-
tional question.
* * *
Nevada v. Hall is irreconcilable with our constitutional
structure and with the historical evidence showing a
18 FRANCHISE TAX BD. OF CAL. v. HYATT
Opinion of the Court
widespread preratification understanding that States
retained immunity from private suits, both in their own
courts and in other courts. We therefore overrule that
decision. Because the Board is thus immune from Hyatt’s
suit in Nevada’s courts, the judgment of the Nevada Su-
preme Court is reversed, and the case is remanded for
proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1299
_________________
FRANCHISE TAX BOARD OF CALIFORNIA,
PETITIONER v. GILBERT P. HYATT
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEVADA
[May 13, 2019]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Can a private citizen sue one State in the courts of
another? Normally the answer to this question is no,
because the State where the suit is brought will choose to
grant its sister States immunity. But the question here is
whether the Federal Constitution requires each State to
grant its sister States immunity, or whether the Constitu-
tion instead permits a State to grant or deny its sister
States immunity as it chooses.
We answered that question 40 years ago in Nevada v.
Hall, 440 U.S. 410 (1979). The Court in Hall held that
the Constitution took the permissive approach, leaving it
up to each State to decide whether to grant or deny its
sister States sovereign immunity. Today, the majority
takes the contrary approach—the absolute approach—and
overrules Hall. I can find no good reason to overrule Hall,
however, and I consequently dissent.
I
Hall involved a suit brought by a California resident
against the State of Nevada in the California courts. We
rejected the claim that the Constitution entitled Nevada to
absolute immunity. We first considered the immunity
that States possessed as independent sovereigns before
2 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
the Constitution was ratified. And we then asked whether
ratification of the Constitution altered the principles of
state sovereign immunity in any relevant respect. At both
steps, we concluded, the relevant history and precedent
refuted the claim that States are entitled to absolute
immunity in each other’s courts.
A
Hall first considered the immunity that States pos-
sessed before ratification. “States considered themselves
fully sovereign nations” during this period, ante, at 6, and
the Court in Hall therefore asked whether sovereign
nations would have enjoyed absolute immunity in each
other’s courts at the time of our founding.
The answer was no. At the time of the founding, nations
granted other nations sovereign immunity in their courts
not as a matter of legal obligation but as a matter of
choice, i.e., of comity or grace or consent. Foreign sover-
eign immunity was a doctrine “of implied consent by the
territorial sovereign . . . deriving from standards of public
morality, fair dealing, reciprocal self-interest, and re-
spect.” National City Bank of N. Y. v. Republic of China,
348 U.S. 356, 362 (1955). Since customary international
law made the matter one of choice, a nation could with-
draw that sovereign immunity if it so chose.
This Court took that view of foreign sovereign immunity
in two founding-era decisions that forecast the result in
Hall. In Schooner Exchange v. McFaddon, 7 Cranch 116
(1812), when considering whether an American citizen
could impose a lien upon a French warship, Chief Justice
John Marshall wrote for the Court that international law
did not require the United States to grant France sover-
eign immunity. Any such requirement, he reasoned,
“would imply a diminution” of American “sovereignty.”
Id., at 136. Instead, Chief Justice Marshall observed that
any “exceptions” to “the full and complete power of a na-
Cite as: 587 U. S. ____ (2019) 3
BREYER, J., dissenting
tion within its own territories, must be traced up to the
consent of the nation itself ” and “can flow from no other
legitimate source.” Ibid. (emphasis added).
The Court ultimately held in Schooner Exchange that
the United States had consented implicitly to give immu-
nity to the French warship. See id., at 147. But that was
because “national ships of war, entering the port of a
friendly power open for their reception, [we]re to be con-
sidered as exempted by the consent of that power from its
jurisdiction.” Id., at 145–146. And the Chief Justice was
careful to note that this implication of consent could be
“destroy[ed]” in various ways, including by subjecting the
foreign nation “to the ordinary tribunals.” Id., at 146.
Ten years later, in The Santissima Trinidad, 7 Wheat.
283 (1822), this Court unanimously reaffirmed Schooner
Exchange’s conclusion that foreign sovereign immunity
was not an absolute right. The Court in Santissima Trin-
idad was called upon to determine whether the cargo of an
Argentine ship, found in Baltimore Harbor, was immune
from seizure. The ship’s commander asserted that Argen-
tina had an absolute right to immunity from suit, claiming
that “no sovereign is answerable for his acts to the tribu-
nals of any foreign sovereign.” Id., at 352. But Justice
Joseph Story, writing for the Court, squarely rejected the
“notion that a foreign sovereign had an absolute right, in
virtue of his sovereignty, to an exemption of his property
from the local jurisdiction of another sovereign, when it
came within his territory.” Ibid. Rather, any exception to
jurisdiction, including sovereign immunity, “stands upon
principles of public comity and convenience, and arises
from the presumed consent or license of nations.” Id., at
353. Accordingly, Justice Story explained, the right to
assert sovereign immunity “may be withdrawn upon notice
at any time, without just offence.” Ibid. (emphasis added).
Justice Story then held that the Argentine ship’s cargo
was not immune from seizure. Id., at 354.
4 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
The Court in Hall relied on this reasoning. See 440
U.S., at 416–417. Drawing on the comparison to foreign
nations, the Court in Hall emphasized that California had
made a sovereign decision not to “exten[d] immunity to
Nevada as a matter of comity.” Id., at 418. Unless some
constitutional rule required California to grant immunity
that it had chosen to withhold, the Court “ha[d] no power
to disturb the judgment of the California courts.” Ibid.
B
The Court in Hall next held that ratification of the
Constitution did not alter principles of state sovereign
immunity in any relevant respect. The Court concluded
that express provisions of the Constitution—such as the
Eleventh Amendment and the Full Faith and Credit
Clause of Article IV—did not require States to accord each
other sovereign immunity. See id., at 418–424. And the
Court held that nothing “implicit in the Constitution”
treats States differently in respect to immunity than
international law treats sovereign nations. Id., at 418; see
also id., at 424–427.
To the contrary, the Court in Hall observed that an
express provision of the Constitution undermined the
assertion that States were absolutely immune in each
other’s courts. Unlike suits brought against a State in the
State’s own courts, Hall noted, a suit against a State in
the courts of a different State “necessarily implicates the
power and authority of ” both States. Id., at 416. The
defendant State has a sovereign interest in immunity from
suit, while the forum State has a sovereign interest in
defining the jurisdiction of its own courts. The Court in
Hall therefore justified its decision in part by reference to
“the Tenth Amendment’s reminder that powers not dele-
gated to the Federal Government nor prohibited to the
States are reserved to the States or to the people.” Id., at
425. Compelling States to grant immunity to their sister
Cite as: 587 U. S. ____ (2019) 5
BREYER, J., dissenting
States would risk interfering with sovereign rights that
the Tenth Amendment leaves to the States.
To illustrate that principle, Hall cited Georgia v. Chat-
tanooga, 264 U.S. 472 (1924), which concerned condemna-
tion proceedings brought by a municipality against prop-
erty owned by a neighboring State. See Hall, 440 U.S., at
426, n. 29. The Court in Chattanooga held that one State
(Georgia) that had purchased property for a railroad in a
neighboring State (Tennessee) could not exempt itself
from the eminent domain power of the Tennessee city in
which the property was located. 264 U.S., at 480. The
reason was obvious: “The power of eminent domain is an
attribute of sovereignty,” and Tennessee did not surrender
that sovereign power simply by selling land to Georgia.
Ibid. In light of the competing sovereignty interests on
both sides of the matter, the Court in Chattanooga found
no basis to interpose a federally mandated resolution.
Similar reasoning applied in Hall. Mandating absolute
interstate immunity “by inference from the structure of
our Constitution and nothing else” would “intru[de] on the
sovereignty of the States—and the power of the people—in
our Union.” 440 U.S., at 426–427.
II
The majority disputes both Hall’s historical conclusion
regarding state immunity before ratification and its con-
clusion that the Constitution did not alter that immunity.
But I do not find the majority’s arguments convincing.
A
The majority asserts that before ratification “it was well
settled that States were immune under both the common
law and the law of nations.” Ante, at 9. The majority thus
maintains that States were exempt from suit in each
other’s courts.
But the question in Hall concerned the basis for that
6 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
exemption. Did one sovereign have an absolute right to an
exemption from the jurisdiction of the courts of another, or
was that exemption a customary matter, a matter of con-
sent that a sovereign might withdraw? As to that ques-
tion, nothing in the majority’s opinion casts doubt on
Hall’s conclusion that States—like foreign nations—were
accorded immunity as a matter of consent rather than
absolute right.
The majority refers to “the founding era’s foremost
expert on the law of nations,” Emer de Vattel, who stated
that a “sovereign is ‘exempt from all foreign jurisdiction.’ ”
Ante, at 7 (quoting 4 E. de Vattel, The Law of Nations 486
(J. Chitty ed. 1883) (Vattel); alterations omitted). But
Vattel made clear that the source of a sovereign’s immu-
nity in a foreign sovereign’s courts is the “ ‘consen[t]’ ” of the
foreign sovereign, which, he added, reflects a “ ‘tacit con-
vention’ ” among nations. Schooner Exchange, 7 Cranch,
at 143 (quoting 4 Vattel 472). And Schooner Exchange
and Santissima Trinidad underscore that such a tacit
convention can be rejected, and that consent can be “with-
drawn upon notice at any time.” Santissima Trinidad, 7
Wheat., at 353.
The majority also draws on statements of the Founders
concerning the importance of sovereign immunity gener-
ally. But, as Hall noted, those statements concerned mat-
ters entirely distinct from the question of state immunity
at issue here. Those statements instead “concerned ques-
tions of federal-court jurisdiction and the extent to which
the States, by ratifying the Constitution and creating
federal courts, had authorized suits against themselves in
those courts.” 440 U.S., at 420–421 (emphasis added).
That issue was “a matter of importance in the early days
of independence,” for it concerned the ability of holders of
Revolutionary War debt owed by States to collect that debt
in a federal forum. Id., at 418. There is no evidence that
the Founders who made those statements intended to
Cite as: 587 U. S. ____ (2019) 7
BREYER, J., dissenting
express views on the question before us. And it seems
particularly unlikely that John Marshall, one of those to
whom the Court refers, see ante, at 10–11, would have
held views of the law in respect to States that he later
repudiated in respect to sovereign nations.
The majority cites Nathan v. Virginia, 1 Dall. 77, n. (C.
P. Phila. Cty. 1781). As the majority points out, that case
involved a Pennsylvania citizen who filed a suit in Penn-
sylvania’s courts seeking to attach property belonging to
Virginia. The Pennsylvania Court of Common Pleas ac-
cepted Virginia’s claim of sovereign immunity and dis-
missed the suit. But it did so only after “delegates in
Congress from Virginia . . . applied to the supreme execu-
tive council of Pennsylvania” for immunity, and Pennsyl-
vania’s Attorney General, representing its Executive,
asked the court to dismiss the case. Id., at 78, n. The
Pennsylvania court thus granted immunity only after
Virginia “followed the usual diplomatic course.” Pfander,
Rethinking the Supreme Court’s Original Jurisdiction in
State-Party Cases, 82 Cal. L. Rev. 555, 585 (1994). Given
the participation of Pennsylvania’s Executive in this dip-
lomatic matter, the case likely involved Pennsylvania’s
consent to a claim of sovereign immunity, rather than a
view that Virginia had an absolute right to immunity.
B
The majority next argues that “the Constitution affirm-
atively altered the relationships between the States” by
giving them immunity that they did not possess when they
were fully independent. Ante, at 13. The majority thus
maintains that, whatever the nature of state immunity
before ratification, the Constitution accorded States an
absolute immunity that they did not previously possess.
The most obvious problem with this argument is that no
provision of the Constitution gives States absolute immu-
nity in each other’s courts. The majority does not attempt
8 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
to situate its newfound constitutional immunity in any
provision of the Constitution itself. Instead, the majority
maintains that a State’s immunity in other States’ courts
is “implicit” in the Constitution, ante, at 16, “embed[ded]
. . . within the constitutional design,” ante, at 13, and
reflected in “ ‘the plan of the Convention,’ ” ante, at 9. See
also Hall, 440 U.S., at 430 (Blackmun, J., dissenting)
(arguing that immunity in this context is found “not in an
express provision of the Constitution but in a guarantee
that is implied as an essential component of federalism”).
I agree with today’s majority and the dissenters in Hall
that the Constitution contains implicit guarantees as well
as explicit ones. But, as I have previously noted, concepts
like the “constitutional design” and “plan of the Conven-
tion” are “highly abstract, making them difficult to ap-
ply”—at least absent support in “considerations of history,
of constitutional purpose, or of related consequence.”
Federal Maritime Comm’n v. South Carolina Ports Author-
ity, 535 U.S. 743, 778 (2002) (BREYER, J., dissenting).
Such concepts “invite differing interpretations at least as
much as do the Constitution’s own broad liberty-protecting
phrases” such as “ ‘due process’ ” and “ ‘liberty,’ ” and “they
suffer the additional disadvantage that they do not actually
appear anywhere in the Constitution.” Ibid.
At any rate, I can find nothing in the “plan of the Con-
vention” or elsewhere to suggest that the Constitution
converted what had been the customary practice of ex-
tending immunity by consent into an absolute federal
requirement that no State could withdraw. None of the
majority’s arguments indicates that the Constitution
accomplished any such transformation.
The majority argues that the Constitution sought to
preserve States’ “equal dignity and sovereignty.” Ante, at
13. That is true, but tells us nothing useful here. When a
citizen brings suit against one State in the courts of an-
other, both States have strong sovereignty-based interests.
Cite as: 587 U. S. ____ (2019) 9
BREYER, J., dissenting
In contrast to a State’s power to assert sovereign immu-
nity in its own courts, sovereignty interests here lie on both
sides of the constitutional equation.
The majority also says—also correctly—that the Consti-
tution demanded that States give up certain sovereign
rights that they would have retained had they remained
independent nations. From there the majority infers that
the Constitution must have implicitly given States im-
munity in each other’s courts to provide protection that
they gave up when they entered the Federal Union.
But where the Constitution alters the authority of
States vis-à-vis other States, it tends to do so explicitly.
The Import-Export Clause cited by the majority, for exam-
ple, creates “harmony among the States” by preventing
them from “burden[ing] commerce . . . among themselves.”
Michelin Tire Corp. v. Wages, 423 U.S. 276, 283, 285
(1976). The Full Faith and Credit Clause, also invoked by
the majority, prohibits States from adopting a “policy of
hostility to the public Acts” of another State. Franchise
Tax Bd. of Cal. v. Hyatt, 578 U. S. ___, ___ (2016) (slip op.,
at 2). By contrast, the Constitution says nothing explicit
about interstate sovereign immunity.
Nor does there seem to be any need to create implicit
constitutional protections for States. As the history of this
case shows, the Constitution’s express provisions seem
adequate to prohibit one State from treating its sister
States unfairly—even if the State permits suits against its
sister States in its courts. See id., at ___ (slip op., at 4)
(holding that the Full Faith and Credit Clause prohibits
Nevada from subjecting the Board to greater liability than
Nevada would impose upon its own agency in similar
circumstances).
The majority may believe that the distinction between
permissive and absolute immunity was too nuanced for
the Framers. The Framers might have understood that
most nations did in fact allow other nations to assert
10 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
sovereign immunity in their courts. And they might have
stopped there, ignoring the fact that, under international
law, a nation had the sovereign power to change its mind.
But there is simply nothing in the Constitution or its
history to suggest that anyone reasoned in that way. No
constitutional language supports that view. Chief Justice
Marshall, Justice Story, and the Court itself took a some-
what contrary view without mentioning the matter. And
there is no strong reason for treating States differently
than foreign nations in this context. Why would the
Framers, silently and without any evident reason, have
transformed sovereign immunity from a permissive im-
munity predicated on comity and consent into an absolute
immunity that States must accord one another? The
Court in Hall could identify no such reason. Nor can I.
III
In any event, stare decisis requires us to follow Hall, not
overrule it. See Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 854–855 (1992); see also Kimble v.
Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015)
(slip op., at 7–8). Overruling a case always requires “ ‘spe-
cial justification.’ ” Kimble, 576 U. S., at ___ (slip op., at 8).
What could that justification be in this case? The majority
does not find one.
The majority believes that Hall was wrongly decided.
But “an argument that we got something wrong—even a
good argument to that effect—cannot by itself justify
scrapping settled precedent.” Kimble, 576 U. S., at ___
(slip op., at 8). Three dissenters in Hall also believed that
Hall was wrong, but they recognized that the Court’s
opinion was “plausible.” 440 U.S., at 427 (opinion of
Blackmun, J.). While reasonable jurists might disagree
about whether Hall was correct, that very fact—that Hall
is not obviously wrong—shows that today’s majority is
obviously wrong to overrule it.
Cite as: 587 U. S. ____ (2019) 11
BREYER, J., dissenting
The law has not changed significantly since this Court
decided Hall, and has not left Hall a relic of an abandoned
doctrine. To the contrary, Hall relied on this Court’s
precedent in reaching its conclusion, and this Court’s
subsequent cases are consistent with Hall. As noted
earlier, Hall drew its historical analysis from earlier
decisions such as Schooner Exchange, written by Chief
Justice Marshall. And our post-Hall decisions regarding
the immunity of foreign nations are consistent with those
earlier decisions. The Court has recently reaffirmed
“Chief Justice Marshall’s observation that foreign sover-
eign immunity is a matter of grace and comity rather than
a constitutional requirement.” Republic of Austria v.
Altmann, 541 U.S. 677, 689 (2004). And the Court has
reiterated that a nation may decline to grant other nations
sovereign immunity in its courts. Verlinden B. V. v. Cen-
tral Bank of Nigeria, 461 U.S. 480, 486 (1983).
Nor has our understanding of state sovereign immunity
evolved to undermine Hall. The Court has decided several
state sovereign immunity cases since Hall, but these cases
have all involved a State’s immunity in a federal forum or
in the State’s own courts. Compare Federal Maritime
Comm’n, 535 U.S., at 769 (state immunity in a federal
forum); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47
(1996) (same); Blatchford v. Native Village of Noatak, 501
U.S. 775, 782 (1991) (same), with Alden v. Maine, 527
U.S. 706, 715 (1999) (state immunity in a State’s “own
courts”); Will v. Michigan Dept. of State Police, 491 U.S.
58, 67 (1989) (same). None involved immunity asserted by
one State in the courts of another. And our most recent
case to address Hall in any detail endorses it. See Alden,
527 U.S., at 739–740 (noting that Hall’s distinction “be-
tween a sovereign’s immunity in its own courts and its
immunity in the courts of another sovereign” is “consistent
with, and even support[s],” modern cases).
The dissenters in Hall feared its “practical implica-
12 FRANCHISE TAX BD. OF CAL. v. HYATT
BREYER, J., dissenting
tions.” 440 U.S., at 443 (opinion of Rehnquist, J.). But I
can find nothing in the intervening 40 years to suggest
that this fear was well founded. The Board and its amici
have, by my count, identified only 14 cases in 40 years in
which one State has entertained a private citizen’s suit
against another State in its courts. See Brief for Petitioner
46–47; Brief for State of Indiana et al. as Amici Curiae
13–14. In at least one of those 14 cases, moreover, the
state court eventually agreed to dismiss the suit against
its sister State as a matter of comity. See Montaño v.
Frezza, 2017–NMSC–015, 393 P.3d 700, 710. How can it
be that these cases, decided over a period of four decades,
show Hall to be unworkable?
The Hall issue so rarely arises because most States, like
most sovereign nations, are reluctant to deny a sister
State the immunity that they would prefer to enjoy recip-
rocally. Thus, even in the absence of constitutionally
mandated immunity, States normally grant sovereign
immunity voluntarily. States that fear that this practice
will be insufficiently protective are free to enter into an
interstate compact to guarantee that the normal practice
of granting immunity will continue. See Cuyler v. Adams,
449 U.S. 433, 440 (1981).
Although many States have filed an amicus brief in this
case asking us to overturn Hall, I can find nothing in the
brief that indicates that reaffirming Hall would affront
“the dignity and respect due sovereign entities.” Federal
Maritime Comm’n, 535 U.S., at 769. As already ex-
plained, sovereign interests fall on both sides of this ques-
tion. While reaffirming Hall might harm States seeking
sovereign immunity, overruling Hall would harm States
seeking to control their own courts.
Perhaps the majority believes that there has been insuf-
ficient reliance on Hall to justify preserving it. But any
such belief would ignore an important feature of reliance.
The people of this Nation rely upon stability in the law.
Cite as: 587 U. S. ____ (2019) 13
BREYER, J., dissenting
Legal stability allows lawyers to give clients sound advice
and allows ordinary citizens to plan their lives. Each time
the Court overrules a case, the Court produces increased
uncertainty. To overrule a sound decision like Hall is to
encourage litigants to seek to overrule other cases; it is to
make it more difficult for lawyers to refrain from challeng-
ing 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.
I understand that judges, including Justices of this
Court, may decide cases wrongly. I also understand that
later-appointed judges may come to believe that earlier-
appointed judges made just such an error. And I under-
stand that, because opportunities to correct old errors are
rare, judges may be tempted to seize every opportunity to
overrule cases they believe to have been wrongly decided.
But the law can retain the necessary stability only if this
Court resists that temptation, overruling prior precedent
only when the circumstances demand it.
* * *
It is one thing to overrule a case when it “def [ies] practi-
cal workability,” when “related principles of law have so
far developed as to have left the old rule no more than a
remnant of abandoned doctrine,” or when “facts have so
changed, or come to be seen so differently, as to have
robbed the old rule of significant application or justifica-
tion.” Casey, 505 U.S., at 854–855. It is far more danger-
ous to overrule a decision only because five Members of a
later Court come to agree with earlier dissenters on a
difficult legal question. The majority has surrendered to
the temptation to overrule Hall even though it is a well-
reasoned decision that has caused no serious practical
problems in the four decades since we decided it. Today’s
decision can only cause one to wonder which cases the
Court will overrule next. I respectfully dissent.