What kind of controversy gets the Supreme Court to line up Alito, Roberts, Kennedy, Breyer, and Sotomayor against Ginsburg, Scalia, Kagan, and Thomas? A suit over whether Maryland counties (and the city of Baltimore) must give credits to Maryland residents who pay taxes to other states for income they earn across state lines. This looks like a classic quarrel over whether the problem with a law is that it's lousy policy or that it violates the Constitution. What Constitutional principle limits taxes, you may wonder, and where has it been all our lives? In this case, the idea is that double-taxation across state lines amounts to a tariff on interstate commerce. If you don't find that convincing, you may side with strict-interpretationists Scalia and Thomas, and wish that the problem would be solved at the ballot box instead.
The press is generally reporting this as problematic because Maryland counties and the city of Baltimore need lots of cash, which apparently is the only useful consideration when it comes to taxation policy or the Constitutional limits on state power. Myself, I'd worry more about having to mediate disputes between states over who has the best right to glom onto every penny of income they can identify in the hands of people who are energetic enough to earn money in interstate commerce--but I suppose they've been facing that issue for a long time now, given that most states already have a system of interstate credits in place. Ah, for the days when I paid income tax to California, New Jersey, and the State and City of New York while living in (income-tax-free) Texas. I'm sure they put the money to good use.
That is a strange split.
ReplyDeleteThis is what you get when there are no philosophical bases for decision. This is a tax case. The State is going to argue it gets the maximum, the taxpayer is going to argue for the minimum, every time. The judges are going to read the applicable law, and apply it, without much filtering.
ReplyDeleteValerie
The press is generally reporting this as problematic because Maryland counties and the city of Baltimore need lots of cash....
ReplyDeleteand
This is what you get when there are no philosophical bases for decision.
Indeed. Nobody is interested in establishing, first, the need for the cash. That's just taken, cynically, as a given. Government as Leftist: I want, therefore I deserve.
Eric Hines
I recall reading about five years ago that the supposed conservative-liberal split in the SCOTUS is nowhere near as pronounced as the Washington- NYC press would have us believe (for their own reasons), and never has been. Volokh, maybe. Who votes with whom is mostly applicable only in the clearest of cultural divide issues. Outside that, the judges do indeed come from differing legal interpretive schools and vote on unexpected lines more than is thought.
ReplyDeleteI see a fairly clear distinction here between judges who are voting on the basis of policy (conservatives against unfair tax, liberal for generous tax revenues) vs. judges who are voting on the basis of flexible vs. strict textual interpretation (conservatives and liberals joining to oppose the tax on fairness grounds rather than textual interpretation, and Scalia and Thomas, at least, naturally inclined to oppose an unfair tax but constrained to uphold a taxing power as to which there is no identifiable specific Constitutional prohibition).
ReplyDelete