WASHINGTON – The Supreme Court tried for the third time Wednesday to resolve a decades-old legal battle between California and Nevada whose roots date back to the nation's founding.

At stake is an important issue of states' rights: Can a state be hauled into another state's court system against its will? Forty years ago, the high court allowed it. But times – and all the justices – have changed.

This particular war of the West began in 1993, when California's Franchise Tax Board audited Gilbert Hyatt and sought millions of dollars in back taxes following his move to Nevada. Hyatt sued in his new home state, alleging that the California auditor divulged his personal data, trespassed on his property and vowed to "get that Jew bastard."

The Supreme Court ruled in 2003 that California was not immune to the lawsuit. Nevada awarded Hyatt $375 million in damages, later reduced to $1 million, and California fought back.

The case eventually reached the Supreme Court again in 2015, and the justices may have been on the verge of siding with California when Associate Justice Antonin Scalia's death produced a deadlock. Since then, President Donald Trump has named two new associate justices whose votes will be critical to California's claim of immunity, which is backed by 46 other states.

During oral argument Wednesday, the court spent more time debating the intentions of the Founding Fathers than the specifics of the dispute. Some of the court's liberal justices defended Nevada's right to protect its citizens, while some conservatives defended California's right to govern itself.

"What do you think in the constitutional design reflects the willingness of one state to give up its power to protect its own citizens from the actions of another state who might intrude directly?" Associate Justice Sonia Sotomayor asked Seth Waxman, a former U.S. solicitor general representing California's Franchise Tax Board.

But Chief Justice John Roberts reserved his questions for Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, who represented Hyatt. He argued that "comity" such as that between sovereign nations generally is sufficient to protect states from being hauled into others' courts.

"Well, the remedy for the failure to accord comity at international law was recognized to be war," Roberts said. "What remedy do the states have under your view if a state chooses not to extend comity to a sister state?"

The balance of power may be held by Trump's justices – Neil Gorsuch, who replaced Scalia in 2017, and Brett Kavanaugh, who replaced Anthony Kennedy in October. Gorsuch was silent Wednesday, while Kavanaugh had pointed questions for both sides.

The high court has been trending in recent years toward interpreting the Constitution as written, rather than as it might be viewed today. For unknown reasons, states were not protected from other states' courts in 1789.

"Why is it not in the text of the Constitution, in your view, given that the Constitution is a document, in my view, of majestic specificity?" Kavanaugh asked Waxman.

The newest justice also had questions for Chemerinsky, ranging from Alexander Hamilton's position on state sovereignty in Federalist No. 81 to recent Supreme Court cases defending such independence.

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