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PaperclipPerfector  5mo ago (text post)   25732 thread views

Culture War Roundup for the week of December 4, 2023

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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:

The story of Moore starts in 2017, when President Donald Trump signed the Tax Cuts and Jobs Act. The law aimed to minimize the incentive for U.S. corporations to hoard money overseas by reducing certain taxes on foreign earnings. But, in exchange, U.S. investors would have to pay a onetime tax on accumulated foreign profits going back several decades—the so-called transition tax. Charles and Kathleen Moore are among the Americans affected by the change. In 2006, they invested $40,000 in KisanKraft, an Indian company owned by a friend. They allege that they never received any payments from the company because all of its profits were reinvested. The transition tax nevertheless stuck the Moores with a $15,000 tax bill based on the company’s retained earnings. The Moores countered that the transition tax is unconstitutional because it exceeds Congress’s power under the Sixteenth Amendment. That amendment, ratified in 1913, explicitly empowers Congress to tax incomes. But the Moores argue that unrealized gains aren’t income at all.

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?

My typical court-model is pretty consistent with what you laid out there, with the typical shape being:

  • Consistent left, shitty or irrelevant reasoning: Sotomayor and Jackson
  • Consistent left, sharp wit and compelling arguments: Kagan
  • Centrist institutionalists: Roberts, Kavanaugh, sometimes Barrett
  • Consistent right: Thomas, Alito, sometimes Barrett
  • Maverick: Gorsuch

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.

While i might quibble about the precise breakdown of each justice, Your model of the court largely matches mine and i agree with your prediced outcome.

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