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(Mods, let me know if I need to delete this and repost in Small Questions Sunday.)
The US Supreme Court (SCOTUS) hears Moore v United States today. According to SCOTUSBlog, at issue is "Whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states". Since that's not very helpful, I'll quote The Atlantic's summary instead:
Mother Jones, NPR, CBS, and Foreign Policy (of all the friggin' places) are running articles breathlessly proclaiming DOOM! for the US tax code, or at least the ability of Democrats to pass wealth tax laws. This Forbes article seems to be a pretty good explanation of what's at issue but I'll admit that I'm not well-versed enough in tax law to understand the full ramifications of what a Moore victory would mean for the ability of the federal government to raise revenue. On the other hand, I can't say I'm sad about the idea of a wealth taxes getting a bullet to the head. What am I missing or not considering as I read about this from the various outlets?
I'll come out with a prediction that Gorsuch will bite the bullet and be willing to simply follow the letter of the amendment clearly and obstinately. He is, after all, the originator of the buttfore test from Bostock, and the preeminent justice who actually thinks the federal government has to follow the treaties it has signed to the letter. If anyone will read the amendment and declare unrealized gains obviously not income and therefore not taxable, it's him.
Roberts will squish and try to legislate from the bench, saving the way congress currently taxes despite it being clearly unconstitutional and Neil saying so, but that's an easy prediction. It's in his nature, it's what he's there to do, and it's why Bush put him on the bench. Maybe he'll try to steal the opinion from Gorsuch, who would absolutely savage any existing structures if they counteract the letter of the law.
I'm sure all three opposition women will join Roberts in allowing a wealth tax, but I'm at least hopeful Kagan will have a clever excuse. I never expect cleverness from Sotomayor or Jackson, just party-line votes as a good foot soldier.
However, the rest of the conservative wing is up in the air. Kavanaugh is another squish like Roberts, and Barrett seems to be leaning the same way on anything not abortion. You'd figure Alito and Thomas would be pleased to prevent Congress from reaching its tentacles into another pot of gold, but they're also most amenable to business interests, and if the tax code would be flipped on its head due to a decision, I can see either of them ruling to delay disruption somehow in a narrower ruling.
Anyone else care to personally prognosticate?
What’s odd is that the court took this up in the first place. First, tax cases aren’t popular at the court. Second, there was no circuit split. Third, the amount at stake was small.
It seems to me there are five votes to say 965 was wrong (why else would they take this case). But there are maybe a few ways to get there.
First, they could put teeth back into the rule against retroactive law. That is, they could say there can be a deemed distribution but such distribution could not cover earnings in a prior year (ie congress had a chance to tax that earnings but choose not to do so).
Second, they could limit any deemed distribution to taxpayers that control (taxpayers here own less than 50% and therefore don’t control).
Third, they could somehow try to distinguish between individuals and corporations. Doing so is hard in light of Moline Properties.
In short, I expect the Moore’s to win but narrowly in a way that does not upend the entire US international tax system.
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My typical court-model is pretty consistent with what you laid out there, with the typical shape being:
So, basically, I model the court as three left-votes, two-three centrist votes, two-three right votes, and one true wildcard (that does tend right). This is a very different model in practice than the 6-3 "conservative majority" that is treated as a stylized fact; the actual balance prevents originalist and textualist understanding from obliterating stare decisis altogether, even when the precedent is garbage.
With that model, I will guess that Roberts will guide a 5-4 or 6-3 majority that carves out a narrow decision that prevents expansion of taxation powers in the most egregious fashion while not rolling much back. Gorsuch may well pen a concurrence that's much more strident and Thomas may join him with a "yeah, and also we should burn all this shit down" opinion. Sotomayor or Jackson will pen a leftist screed that amounts to, "but if the conservatives are right, this would stop a lot of taxes that we like!" opinion. Kagan will dutifully concur, but decline to write an opinion because the reasoning is too sketchy.
Is there anything that can be done to prevent such perfidy from the Chief Justice? Is it possible that we have six votes that these people don't owe taxes, but only Kavanaugh and Roberts in the narrow decision while still writing for the majority? I'll admit I don't know the specifics of determining opinions and which opinions are legally relevant and which are just eloquent essays.
While I am not an expert and am under the impression that this is all determined by tradition rather than statute, my impression is that the answer with the current system is that Roberts just has complete (and formally legitimate) power to select the author of the controlling opinion:
Given the fragile nature of Supreme Court composition, this may not even be a bad thing. I personally find it incredibly frustrating that we wind up with rulings that expound on various implausible theories for why only the tiniest change is legitimate, but I acknowledge that an aggressive handling of such matters could lead to court packing or an outright Constitutional crisis. Roberts apparently evincing cowardice may well reflect him being unwilling to throw away long-run advancement of his preferences for the sake of short-run correctness.
So, the members of the Court vote at conference, and the senior member of the majority side gets to assign the opinion (Roberts, as Chief, automatically has seniority, which is relevant if he's in the majority). The justice so assigned then writes an opinion, and so does any other justice that wishes to. Those opinions are circulated, and each other justice signs on to whichever opinion they choose, in whole or in part. Often, these opinions--especially the assigned-majority opinion--go through multiple drafts, which generally affect how much the other justices are willing to endorse. Once the process works its way out, you get final drafts of the various opinions, each with a holding (A wins/B wins) on the outcome of the case, and with the full or partial endorsements of the other justices.
After all of this is done, you can evaluate which side won, and which opinion holds the authority of the Court. If a majority of the participating members of the Court vote that side A wins, then that side wins. If there's a tie (possible with recusals or other absent votes), then the lower court decision stands. In terms of reasoning that holds precedential effect, look for any section in any opinion that is endorsed by a majority of the Court voting in the case. In particularly split cases, there may not be a reasoning that commands a majority at all, in which case the precedent is "side A wins, no specific reasoning controls."
Hypothetical: a case is heard, and at conference the vote is 6-3, with the three liberal women in the minority. Roberts assigns the opinion to himself. Following the drafting process, the Chief's opinion (A wins) is joined by Kavanaugh; Sotomayor writes for herself, Kagan, and Jackson that B should win; and Gorsuch writes for himself, Thomas, Alito, and Barrett that A wins, but on a different rationale than Roberts. In this case, A wins; there is no controlling rationale; but lower courts would give the most weight to Gorsuch's opinion as it has the most support, even if it isn't binding precedent on them.
The justices usually try to make sure that the hypothetical above doesn't happen, because it's not very useful guidance to the lower courts. It can happen, though, if the split between Roberts/Kavanaugh and Gorsuch et al. is sharp enough. In most cases, you'd at least get (for instance) Kavanaugh endorsing Section IIIA of Gorsuch's opinion, in which case you'd read "GORSUCH delivers the opinion of the Court as to Section IIIA, joined by THOMAS, ALITO, KAVANAUGH, and BARRETT, and an opinion as to sections I, II, IIIB, IIIC, and IV, joined by THOMAS, ALITO, and BARRETT...etc." The key phrasing is "the opinion of the Court" vs. "an opinion."
It's true that all of the detail above is the product of centuries of tradition, but the core is rock solid--the Court is a body made of equal-voting members. A simple majority speaks for the whole. If the Chief cannot get four supporters, he's just another guy with an opinion, but if any member of the Court gets four others to agree, they speak for the Court itself.
(Roberts is rather famous for his Obamacare decision in which zero members of the Court joined his opinion in full. Four members joined part of it, and the other four joined the rest, so his full opinion had five votes in each part, but they weren't the same five votes.)
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Not me, but I appreciate the analysis. Aside from the most obvious party line predictions, I don't have any special insight into the supreme court. They seem mostly like a black box to me.
Any thoughts on the recently adopted code of conduct for the supreme court?
And did they ever find that leaker?
I have rough impressions of the personalities of the justices. Gorsuch as an obstinate contrarian, Kagan as the only liberal who can write, Roberts as there to grease the gears and make sure nothing much happens too fast, and so on. I'm still waiting on Barrett and Kavanaugh to justify themselves, and thus far I'm not impressed. Kavanaugh, especially, seems like Roberts' lackey more than anything else, almost how Thomas was characterized as Scalia's lackey for many years.
I haven't read much about the code of conduct in particular, just that there is one, but in general I think it's a cudgel to be used against the conservative justices, because that's how its implementation has been characterized. I have a low opinion of Propublica and they were one of the main drivers of negative reporting on, for example, Thomas. It's important to know that while Congress can determine the size of the Supreme Court, they can't actually do much else in terms of regulation. Reading up, it appears they just used the same code of ethics (not code of conduct) that was already used in lower courts, and just formally adopted it for the Supreme Court. This prevents Congress from squawking for a time, but the problem wasn't the lack of code of ethics, the problem was and is 6 republican appointees, and that problem still goes in search of solution. This is a defensive measure, and it might work, but I don't have high hopes of anyone being principled or consistent.
Except Neil Gorsuch. I don't particularly like his rulings, but by god the man has brass balls and is willing to swing them around when the law is clear and the judges are specious. He will burn down the law on technicality and sleep soundly having done his job well. Maybe one day he'll recuse himself over something that none of his colleagues would even consider, and we'll say it's the code of ethics come home to roost.
You don't explicitly lay out how a code of conduct that applies to everyone equally is biased against Conservative justices. Is it because you think conservative media outlets are incapable of doing investigative journalism? That only Conservative justices are likely to violate said code of conduct? That everyone is corrupt, but the public/congress will selectively pressure corrupt Conservative justices?
If it came out that, say, Soros was buying houses and fancy vacations for some of the liberal justices I'd anticipate Fox News, talk radio and the Matt Gaetz' of the world would convulse in a collective orgasm and talk about it nonstop for the next three months. Do you disagree?
The restorative justice of Soros-backed district attorneys has killed people and mainstream media only cares when it turns into a horse race.
I can’t fathom any media outlet running a feature on people that would be alive today but for lax prosecutions.
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I thought I was clear: the only reason anyone cares about a code of ethics is because of politicized reporting smearing conservative justices. Therefore, the code of ethics itself is but a cudgel to be used against said justices.
Yes, this too. I don't think Propublica is worth the paper its printed on, and I don't trust them to tell me anything bad about Democrats, or anything good about Republicans.
Yeah, but it won't come out, because that's not the media landscape that exists in reality. In reality, the Hunter Biden laptop full of incriminating evidence is pre-bunked as a non-story and literally every single major media enterprise gets with the program in lockstep fashion. I wouldn't anticipate Fox News doing much about, since last I've checked they're just as much at war with the Republican base as any Never Trumper has ever been. That's one reason why Tucker is out.
He'd be the only one talking about. Him, us here, maybe /pol/, maybe /r/conspiracy, and other fringes of the internet. No major media would cover it seriously, instead the story would be how Republicans are melting down over racist conspiracy theories.
I don't know what world you're living in where you can model outcomes as you have. There just seems to be so much counterevidence that it feels nostalgic, like you expect Walter Cronkite to walk through the door and gently tell you all the things you need to know.
To be clear, "the media" are, at their core, just a ton of very smart and driven people who also happen to be, mostly, progressive. Nothing stops driven conservatives from reporting on the misdeeds of liberal justices, other than a lack of conservative reporters (as in Trace's earlier post), or a lack of misdeeds.
I think it's entirely possible the liberal justices haven't done anything similarly bad? Thomas's actions are specific things that might or might not have happened. I could see an alternate history where Thomas didn't do what he did. I can see a history where the liberal justices and thomas both did similar things. So I can also see a history where Thomas did that and liberal justices didn't do something similar. Like, Bob Menendez chaired Foreign Relations, and he happened to be a democrat. It totally could've been a Republican who did that, but it wasn't.
(also: Liberal Media didn't seem hesitant to report on Menendez's misdeeds. Obviously supreme court justices are more of a sore spot, but it's a comparison)
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I'm sure you do.
And the only reason we care about the Hatch act is that we might someday use it to coerce conservative congress members to resign. Just look at George Santos! We should probably do away with ethics rules in the House. No doubt the IRS is just going to be used to go after conservatives citizens, so we probably ought to dissolve that. The printing press has just been used as a cudgel against conservatives since the 16th century, and the rule of law has fucked conservatives since Hammurabi so we should probably do away with those as well.
I guess the cops are okay. They probably won't go after conservatives.
What you're being unclear about is any kind of broader position beyond being salty that a conservative justice is catching heat for something that, were the shoe on the other foot, you'd be just as happy to complain about. Are you just against any kind of neutral rules so long as what you think of as a biased media could leverage it against a prominent conservative? Are you specifically against any kind of code of ethics for the Supreme court, and if so, how is that different from any other example of ethics/rules that (at least on paper) apply equally to everyone? Is there some kind of underlying principle, or again, are you just salty that your ox got gored?
You say it wouldn't come out, and then give an example that...everyone knows about. The Hunter Biden laptop story was happily trumpeted through conservative talk radio, breitbart, Fox news, boomer facebook and wherever else conservatives get their news. It was broadly discussed in the NYT and plenty of other mainstream outlets as well.
Fox News, literally the most-watched news channel would cover it. As would conservative talk radio, which is how Trump supporters get their news. Randos in rural Idaho aren't getting the Times delivered to their doorsteps.
Who's that, like, a tiktok influencer?
About that…
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There is no such code of conduct. A leftist justice could have an absolutely egregious conflict of interest, and the New York Times and Washington Post and NPR and CNN would carry water for them. Sure, conservative media would complain, but no one cares what they think anyway.
No, there is a code of conduct. A conservative judge could have an absolutely egregious conflict of interest and fox news, conservative talk radio and boomer facebook would carry water for them.
But nobody cares what the conservative media thinks. That's the essential asymmetry. A conservative judge could be pressured into recusing himself by the NYT/WP/CNN/NPR (directly or indirectly); a leftist judge cannot be pressured by the conservative media.
I think this is pretty transparently untrue, especially if you spend lots of time around retirees. There is a significant population who cares about OANN or Fox or whatever. Some of them are also wealthy, opinionated, and like those college-campus kids in that they have lots of time to spend on politics.
The much-maligned unelected judges are reasonably well insulated from the opinions of these voters. That cuts both ways, though, and I don’t see how conservative media is categorically different from its liberal or centrist counterparts.
It’s also rather hard to prove a negative. Did you have a leftist refusal to recuse in mind?
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Tens of millions of people care what conservative media thinks, and they vote accordingly. A conservative judge couldn't be pressured into recusing themselves by the media.
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I don't know if Gorsuch is a contrarian so much as determined to force Congress to actually legislate and actually abide by the legislation it has previously written.
He's contrarian in that I don't think he respects precedent when precedent is in conflict with the plain meaning of the law as written. Most justices will still respect precedent to some degree.
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Kavanaugh is largely responsible for the major questions doctrine. I also expect BK to be very key in the Chevron decision upcoming (his concurrence in Kisor was different that Roberts in some subtle but important ways).
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