Democracy in America | Bias and the justices

A taxing decision

An unusual split at the Supreme Court shows that the justices can rise above ideology

By S.M. | NEW YORK

IN THE 15 years since the nine members of the Supreme Court effectively picked the nation’s 43rd president in Bush v Gore, the justices’ decisions have increasingly been regarded as falling along ideological lines. With the retirements of Sandra Day O'Connor, David Souter and John Paul Stevens—three justices who proved to be more liberal than expected at the time they were nominated—today's court aligns rather neatly with the politics of the appointing presidents. Just over half of Americans perceive the court to be ideologically tilted in one direction or another—liberals tend to see it as conservative, while conservatives regard it as liberal. The justices are meant to transcend ordinary politics and base their rulings in law and logic, but many see their decisions as extensions of their party affiliations. Few were terribly surprised, for example, by the justices' 5-4 rulings last year in cases involving birth control and public prayer.

But since justices are not themselves representatives of any political party, it confuses matters to identify a justice in nakedly partisan terms. And the court has delivered a fair number of rulings in recent years that defy easy ideological explanation. As we await big decisions at the end of June on gay marriage and the fate of Obamacare, it is encouraging to see signs that the justices are not always captive to their predilections.

Last month, Chief Justice John Roberts joined the liberal wing of the bench to uphold limits on personal solicitations by judicial candidates against a free-speech challenge. Twice this term we have seen Elena Kagan, the junior Obama appointee, defect from her liberal colleagues: in Dart Cherokee Basin Operating Company v Owens,which considered how a defendant can transfer his case from a state to a federal court, and in Yates v United States, in which a fisherman was convicted for tossing overboard evidence that he had been catching slightly undersized fish in the Gulf of Mexico. Justice Kagan thought the tossed fish qualified as a "tangible object" under a federal statute banning evidence tampering; her liberal colleagues did not.

Another curious—and apparently unprecedented—lineup appeared in a decision released on May 18th. In Comptroller v Wynne, the court divided 5-4 on the constitutionality of Maryland’s personal-income tax. Justice Samuel Alito wrote the majority opinion for two of his fellow conservatives (Chief Justice Roberts and Justice Kennedy) and two liberals (Justices Breyer and Sotomayor), while Ruth Bader Ginsburg, the liberal lion, Antonin Scalia, the conservative attack-dog, and Clarence Thomas, the ultra-conservative wallflower, each penned dissenting opinions. (Justice Kagan signed on to Justice Ginsburg’s dissent, as did Justice Scalia.)

Wynne concerns double taxation. Unlike most states, which issue a full credit for taxes residents pay to other states on income earned in those states, Maryland taxes all of the income its citizens earn, both in-state and out-of-state. This meant a big tax bill in 2006 for Brian and Karen Wynne of Howard County, Maryland. The Wynnes had earned about half of their $2.7m outside of Maryland, and estimate they were forced to pay $25,000 more than they would have if Maryland had credited them for tax remittances to other states.

A purely ideological vote in this case would probably put the conservative justices on the side of the Wynnes and the liberals on the side of Maryland’s right to tax. One could easily assume the conservatives would see this as yet another example of excessive taxation, whereas liberals might not quibble with a scheme that appears to burden mainly well-off residents while raising over $42m in revenue every year. The justices would never write an opinion in such blatantly political terms, of course. If and when ideology drives Supreme Court decisions, it lurks under a formidable cover of legal citation and argument.

But the 5-4 vote in Wynne betrays no such tinge. Three conservatives held for the plaintiffs and two sided with Maryland; the four liberals split two and two. Everyone agrees there is a "commerce clause" in the constitution that gives Congress the power “to regulate commerce...among the several states.” This language empowers the federal government to ensure that states do not obstruct the smooth operation of business within and across state borders; it lets Congress prohibit interstate tariffs, for example, and ban racial discrimination in public accommodations. But in the early 19th century, the Supreme Court began construing the commerce clause more expansively, using it to prevent states from taking action that is indirectly prejudicial to interstate commerce. In Wynne, the Alito majority held that Maryland’s personal-income tax violates the so-called "dormant commerce clause": it amounts to an unconstitutional tariff by privileging in-state over interstate commerce.

The dissenters disagreed for various reasons you can parse in this excellent analysis at SCOTUSblog by Bradley Joondepth. Suffice it to say that the justices’ sharp conflicts in Wynne over the meaning of the commerce clause are informed by rival readings of precedent and conflicting views of the power of Congress to regulate such things. In other words, while the justices' rival views have significant implications for the breadth of Congress's power to regulate commerce, they are rooted in differences of legal interpretation, not politics.

Reading these opinions provides a reassuring counterpoint to the common view of the Nine as politicians in robes who foist their political preferences on unsuspecting Americans. Wynne shows the justices hard at work at the job they were nominated and confirmed to do: interpreting and applying the constitution of the United States.

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