MINOR ERROR, MAJOR EFFECT

Justice Breyer

Late Wednesday afternoon, April 20, the U.S. Supreme Court issued a minor correction to the majority opinion in Franchise Tax Board of California v. Hyatt, 2016 BL 123436 (U.S. April 19, 2016).

In the original, the header identified the majority opinion as “Opinion of Breyer, J.” The corrected version identifies it as the “Opinion of the Court.”

That the majority opinion was initially labeled as merely the opinion of Justice Stephen G. Breyer suggests that it was initially either a concurrence or a dissent (or, in this case, probably both). If he had been assigned to write the majority opinion all along, the opinion would never have been identified as the “Opinion of Breyer, J."

This is probably the clearest indication we’ll get from the court itself of the major effect the death of Justice Antonin Scalia had on the result in the case, or in any case for that matter. The justices don’t usually give hints about the decision process, leaving their opinions to speak for themselves.

Hyatt was about a Nevada taxpayer who sued California’s income tax collection agency for a number of torts in Nevada state court. The California agency argued that it couldn’t be sued in Nevada courts at all; or, that, if it could, it was at least entitled to the same protections that a Nevada agency would have.

The result in Hyatt ultimately turned on the majority’s interpretation of the full faith and credit clause, U.S. Const. Art. IV §1. It held that when a state hales another state into its courts, it must afford the sued state the same immunities as the forum state would afford itself.

But, as the court acknowledged, it only reached that question because it was unable to decide whether to overrule Nevada v. Hall, 440 U.S. 410 (1979), which allowed states to be haled into the courts of other states without their consent in the first place. The court deadlocked 4-4 on this issue.

Scalia’s missing vote would have been the deciding one on whether to overrule Nevada v. Hall.

If Scalia and Breyer agreed, and they both believed that Nevada v. Hall should be overruled, there would have been no reason for Breyer to have reached full faith and credit in the first place—he wouldn’t have had to draft his own opinion.

If they agreed and they believed that the case should be retained, however, the court would still need to reach full faith and credit. But then whoever wrote the opinion would have been writing for the court all along—again, no reason for Breyer to have a draft opinion that would have been labeled individually.

So we can safely assume that Breyer and Scalia disagreed about whether to overrule Nevada v. Hall (and many court watchers might have assumed this anyway).

The fact that Breyer wrote an opinion on full faith and credit—an issue reached only if he decided not to overrule Nevada v. Hall—suggests that he didn’t want to overrule, and therefore that Scalia did.

This means that, had Scalia lived, the Franchise Tax Board would have won, 5-4, on the initial question of overruling Nevada v. Hall.

Voting to retain Nevada v. Hall, though, doesn’t end the case for the minority four—they still need to reach the full faith and credit issue. Presumably Breyer would have carried at least those four votes (he had five). The result vis-à-vis the Nevada judgment below would have been the same as the majority, however—reversal.

(There would have been practical differences: Overrule would have meant that the Nevada courts never had jurisdiction over the FTB at all. Deciding, as the court ultimately did, on the full faith and credit issue meant that the Nevada court did have jurisdiction, but the judgment had to be reversed in order to enter an appropriately limited damages amount. But in any event the judgment below would be reversed.)

So in a world where Scalia hadn’t died, the Court would have issued a 5-4 on reversal of Nevada v. Hall, and Breyer would have issued an opinion dissenting as to that ruling but concurring in the judgment because of his resolution on the full faith and credit issue.

This scenario could explain Justice Samuel A. Alito Jr.’s curious, opinion-less vote, too.

Alito concurred in the judgment of the court, but didn’t join the majority opinion and didn’t write separately. It seems likely, therefore, that he agreed that the correct result here was to reverse, but didn’t agree as to the full faith and credit decision. Joining Chief Justice John G. Roberts Jr.’s dissent would have suggested that he didn’t think the Nevada court should be reversed.

So where have we landed?

Initially Scalia joined a 5-4 opinion overruling Nevada v. Hall. Breyer drafted a dissent as to that holding but concurring in the result because of his resolution on full faith and credit.

On Feb. 13, Scalia unexpectedly passed away.

The court, now split 4-4 regarding overrule, couldn’t decide that issue. Everyone therefore had to reach full faith and credit. Justice Anthony M. Kennedy, originally voting with the five for overrule, instead joined the four against it to rule as the court ultimately did on full faith and credit. Alito, agreeing that Nevada should be reversed but not as to why, joined in that result but not that opinion. Meanwhile Roberts, initially also with the five for overrule, reached full faith and credit for the first time, disagreeing with Breyer.

And all this we can deduce from the clerical error of failing to change “Opinion of Breyer, J.” to “Opinion of the Court.”