Supreme Court Watch

The Supreme Court is back in session, hearing orals (a curious case included, involving the Tenth Amendment and soap opera type facts) and handed down a couple opinions. Both were supermajorities with two person dissents, each dissent joined by Justice Ginsburg (Thomas/Ginsburg and Sotomayor/Ginsburg, the former a strange duo) and both are statutory cases. The Supremes also decided not to re-litigate a Ten Commandments case, one where Alito might have changed the outcome.

Justice Kagan wrote the opinion for the less significant one (to my eyes), a case about a state that "imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors—interstate motor and water carriers." The possible excitement might come with this statement:

[W]e note what taxpayers have long since discovered—that the meaning of “tax” is expansive. A State (or other governmental entity) seeking to raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities.

Hmm. Does this mean "inactivity" is not a category of taxation in respect to the health insurance law? Or, as sane people say, is activity really at issue? Or, is this a reach? I doubt the last one, at least to the extent those who claim the law is unconstitutional will use any port in the storm.*

Anyway, the other ruling (by Scalia, having some chance to wrestle with the Sotomayor dissent and claims of legislative history) held the National Childhood Vaccine Injury Act "preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by a vaccine’s side effects." Justice Breyer concurred separately:

I join the Court’s judgment and opinion. In my view,the Court has the better of the purely textual argument. But the textual question considered alone is a close one. Hence, like the dissent, I would look to other sources, including legislative history, statutory purpose, and the views of the federal administrative agency, heresupported by expert medical opinion. Unlike the dissent, however, I believe these other sources reinforce the Court’s conclusion.

Though the dissent challenged his "policy" preferences, it seems both opinions thought the law itself set forth the preferences in question. I will leave that to others. I do see merit in Sotomayor using legislative history that "reflects the intent of the Congress that enacted the funding legislation necessary to give operative effect to the principal provisions of the Vaccine Act." And, given the dispute over the text's meaning, Breyer's approach (see also, his recent book) is a useful "tiebreaker," including the position of the executive and the experts the law itself (by his reading) deemed of special importance.

Again, the Court watcher can learn some useful lessons from more run of the mill cases.

---

* Reading about the opinion the next day, I see this tidbit:

Justice Antonin Scalia, writing for the majority, said Congress had meant to establish a societal bargain in the 1986 law. “The vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries,” he wrote. “In exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.”

Another federal district judge upheld the health law though (dubiously) didn't think the "tax" power was involved. You know, a rose by any other name is not a rose, and all that. As noted by the judge, the health law has a sort of quid pro quo too. Health providers and insurers have certain responsibilities that the law balances off in certain ways. Quite constitutionally.