Democratic operative Ronald A. Klain’s devotion to judicial stare decisis — that is, allowing longtime Supreme Court precedents to stand — is nothing if not highly flexible.
In his June 12 op-ed, “Like social change? This court’s not for you.,” Mr. Klain complained that conservatives on the high court had overruled “a 40-year-old precedent governing how state governments can be sued.” That would be Franchise Tax Board of California v. Hyatt , a case involving the sovereign immunity of states, a precedent of so little consequence that it has been challenged only 14 times since the original 1979 ruling.
Mr. Klain concurred with liberal Justice Stephen G. Breyer, who wondered aloud “which cases the court will overrule next.” For all of their supposed concerns about a 40-year-old precedent, however, I don’t recall Mr. Klain (or Mr. Breyer) having similar qualms about Obergefell v. Hodges, in which a 5-to-4 majority on the court created from whole cloth a heretofore unknown “right” to same-sex marriage — which the court had denied when it dismissed an appeal of Baker v. Nelson in 1972 and which was based on thousands of years of societal institution.
As George Orwell might have said, some precedents apparently are “more equal than others.”
Joseph Parisi, Annandale