Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 17–1299
FRANCHISE TAX BOARD OF CALIFORNIA, PETITIONERS 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 Constitution 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
