Supreme Court Watch

Yesterday was a busy day at the Supreme Court with six opinions handed down though they were not really the hot button cases of which many have been keeping track. SCOTUSBlog provides a discussion of the opinions, including a potentially important case involving use of force when dealing with the mentally ill for which the broadest question avoided thus a limited result.  Scalia (with Kagan joining) was annoyed that the Court was in his view tricked to take a case to decide "x" and later found the locality didn't want the Supreme Court to decide the question. Meanwhile, the new attorney general stopped by for the usual ceremonial visit there.

The opinion that was most interest to me involved the "dormant commerce clause" issue the Scalia (though he would again provide limited stare decisis effect) and Thomas think is bogus.  Ginsburg/Kagan split from the other liberals to accept that longstanding principle (states can be found to discriminate and/or burden interstate commerce even without congressional action so holding; some argue there are other ways to address this concern), but differentiate this case from other precedents.

It is interesting to see natural partners split, on both sides here. The case has implications for education  while there clearly are various ways the overall principles (including basic concerns of equality among the states in the economic sphere, here out of state income being treated differently) deemed basic constitutional norms.  The majority (by Alito) had a bit of 'tude, not surprising given its author, including when responding to the two justices who thought the dormant commerce clause principle was bogus. The idea goes back to John Marshall and has been reaffirmed on the merits back to the late 19th Century.  The development of doctrine, not restating first principles or looking at past events in a vacuum (such as state practice back in the day) is addressed.  A sort of "living constitution" approach?

First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.)

That is my favorite example.  It's telling.  The same overall principle should be consistently applied, including when dealing with same sex marriage. Overall concerns, application of precedent, not looking at past history without keeping in mind the vast changes that occurred since then and so forth is a matter of sound judicial practice. Note even Scalia supports stare decisis, even when as a first principle he opposes something.  At the end of the day, the past is suggestive but not the end of the question:

In any event, it is hardly surprising that these early state ventures into the taxation of income included some protectionist regimes that favored the local economy over interstate commerce. What is much more significant is that over the next century, as our Commerce Clause jurisprudence developed, the States have almost entirely abandoned that approach, perhaps in recognition of their doubtful constitutionality. Today, the near-universal state practice is to provide credits against personal income taxes for such taxes paid to other States.

As to Ginsburg's dissent, I won't try to fine tune the question here, since I'm not overly knowledgeable about such tax policy questions. It might be a factor though that her husband was a tax attorney.  The majority's approach does seem "cleaner" as a matter of judicial application by providing a broader rule to apply to all cases.  OTOH, it might be a matter of judicial restraint to give wider freedom to states to formulate its tax polices. This assumes, of course, that the constitutional concerns stated by the majority allows that sort of thing there. Again, interesting case.