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Supreme Court

On March 12, 2018, California lawyers filed a petition for a writ of certiorari, presenting the question: "Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be hauled into another State's courts without its consent, should be overruled". In their petition, the lawyers argued that the Court should have an option to reconsider overruling Hall, because it split 4–4 on the question whether to overrule Hall in Hyatt II. They went on to argue that the "case remains an ideal vehicle to reconsider Hall". According to the petitioner, "'Hall's continuing viability is questionable' in light of more recent decisions of the Supreme Court, including Federal Maritime Commission, Alden, and Seminole Tribe." On April 9, Hyatt waived his right to respond to the petition, but the Court, on May 1, requested a response from him regardless. In his response, Hyatt argued that "Petitioner and its amici offer no such compelling justification for overruling Nevada v. Hall. The decision is almost 30 years old and yet Petitioner and its amici point to only a relatively small number of cases against state governments in the courts of other states and document little burden on state governments from such litigation." After the petitioner filed a reply to Hyatt's brief on June 6, the Court granted certiorari on June 28.

Oral arguments

Seth P. Waxman for petitioner during oral arguments

The Court heard arguments in the case on January 9, 2019. Justice Ruth Bader Ginsburg was absent from the bench as she was recovering from a lung surgery, but did participate in the trial by reading briefs as well as the transcript of the oral arguments. Seth P. Waxman began by arguing for the petitioner, the FTB. Waxman started by arguing that states, prior to the enactment of the Constitution, enjoyed sovereign immunity under international law, because they were seen as seperate sovereigns, with states having the "raw power" to engage in retaliation if their sovereignity was not recognized. The Constitution then created a "more perfect Union", according to Waxman, where states no longer had to rely on the "wild west of international law" for their sovereign immunity to be recognized in the courts of sister-states. Instead, the Constitution guarenteed this protection.

Justice Sonia Sotomayor questioned this idea by asking Waxman what text of the Constitution supported his analysis. She was followed by Justice Samuel Alito, who repeated the question later on, saying—possibly sarcastically—"we are all always very vigilant not to read things into the Constitution that can't be found in the text". On this question, Justice Brett Kavanaugh questioned why, if states considered their interstate sovereign immunity to be so important, they had not expressed that in the Consitution. Waxman addressed this question by arguing that the sovereignity was not found in the text of the Constitution, but its structure.

The only justice to mention the amicus curiae brief filed by professors William Baude and Stephen Sachs was Justice Elena Kagan, who mentioned it multiple times. Baude and Sachs argued that Hall was correctly decided insofar that states are not immune to suit in the courts of sister states. However, Baude and Sachs argued that: "the original Constitution did not force state or federal courts to respect the judgment of a court which lacked power over the defendant under traditional jurisdictional principles. Sister-state immunity was just such a principle. Thus, a State which tries to abrogate that immunity may find its judgments without effect in other American courts." Kagan asked what evidence Waxman had that supported his historical narrative over the narrative put forward over Baude and Sachs.

Erwin Chemerinsky for respondent during oral arguments

After Waxman, Erwin Chemerinsky began his arguments for the respondent. Chemerinsky argued that hisorically, states had been protected from suits in the courts of other states by interstate comity and that this still can protect states. Justice Sotomayor questioned whether comity was enough of a protection. Chermerinsky also pointed to the courts ruling in Hyatt II—where it held that states were required to extend the same immunities to sister states as it had themselves—which also provided protection to states. Justice Stephen Breyer also noted that if a state allowed abusive lawsuits against other states to take place in its own courts, the other states could sue the abusive state, whose "attitude would change".

Justice Alito challenged Chemerinsky by asking whether it was "plausible that there would be great concern about a state's being sued in a federal court, which is a more neutral tribunal, but no concern about a state being sued in ... the courts of another state?" Chemerinsky argued in response that the Framers were particularly concerned about abuse by the new federal government and that states did not want to relinquish its own power. Chemerinsky also argued, on the question of a textal basis for interstate sovereign immunity, that in the instances where the Constitution sought to "limit state power, it did so explicitly", as indicated by the Tenth Amendment to the United States Constitution. Chemerinsky further agued that the Court, in keeping with stare decisis, should only overturn Hall if cicrumstances had changed since its ruling in Hall. Justice Kavanaugh disagreed with this argument, noting that many prior overrulings would have been impossible under this standard. Instead, he argued, the Court could overturn past rulings if they are "egregiously wrong and the prior decision has severe practical consequences and there's no real reliance interest at stake".

During oral arguments, counsel for both parties discussed the amicus curiae filed in favour of petitioner by Indiana, joined by 44 other states. Justice Sotomayor asked Waxman why the states which joined Indiana's brief did not propose an amendment to the Constitution similar to how the Eleventh Amendment was passed after the Chisholm v. Georgia decision. Waxman noted that the "Constitution is not amended lightly" and that the Court previously overturned its decisions even when states could have amended the Constitution too. Chemerinsky later suggested that "you can[not] equate a brief filed by state attorney generals with the position of state governments". Chief Justice John Roberts attacked this suggestion, saying "It's a pretty remarkable assertion that we shouldn't understand representations of the states' attorneys general to represent the views of the state".

Besides Justice Ginsburg, who was not present, Justices Clarence Thomas and Neil Gorsuch did not ask any questions during oral arguments.