When is a historic Supreme Court decision about sales tax not mainly about sales tax? When it’s really about preserving – or overturning – Roe v. Wade, Citizens United, or both.
To understand what just happened at the Supreme Court, we need to think beyond the headlines. Those headlines were simple enough: Last week a 5-4 court majority struck down the central holding of Quill v. North Dakota, a 1992 case that declared a state cannot impose sales tax collection obligations on a business unless that business has a physical presence within the state. The ruling in South Dakota v. Wayfair was a victory for states hoping to force online retailers to collect sales taxes on their behalf.
This is almost certainly not the whole story, nor even the most important story, about the impact of this decision. We can tell from the strange composition of the five-member majority that voted to overturn Quill, and the almost equally curious grouping of four who dissented and would have kept it intact.
Justice Anthony Kennedy wrote the majority opinion. As the typical “swing” vote between the court’s conservatives and liberals, he often gets to write decisions in the most closely contested cases. Sometimes that is the only way to ensure his vote with the majority. But this time, the decisive vote to overturn Quill came not from Kennedy but from Justice Ruth Bader Ginsburg. You can bet something strange is happening any time “the Notorious RBG” is part of a five-justice majority that also includes Kennedy and Ginsburg’s polar opposite, Justice Clarence Thomas, but not her three fellow liberals.
Those three – Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer – joined Chief Justice John Roberts’ dissent. They would have kept Quill intact, even if they believed it should have been decided differently, to honor the judicial principle of “stare decisis.”
Stare decisis asserts that once the courts have settled a precedent, other courts of equal or lesser authority should make every effort to follow that precedent. situs judi online Wayfair overturns not one, but two previous Supreme Court decisions in the name of fixing perceived missteps in Quill and its predecessor, the 1967 decision National Bellas Hess v. Department of Revenue of Illinois.
Roberts directly stated that he agreed those cases had been wrongly decided; where he differed from the majority was in contending that Congress, not the Court, should correct the problem. “The Court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago,” Roberts wrote.
If, as Kennedy wrote in the majority opinion, the Court should indeed exercise its power to correct a “mistake” it made 50 years ago and later affirmed, then the “mistake” of Roe v. Wade is in mortal peril. The views of Supreme Court nominees on stare decisis have long been a proxy for willingness to overturn Roe, and it seems unlikely that this was lost on the three liberal justices who joined in Roberts’ dissent.