Monday, April 2, 2012

When Ginsburg met Thomas

As the punditry world continues to speculate on the fate of the Affordable Care Act, orally argued before the high court last week, I thought it might be appropriate to delve a little bit deeper into the members and their not-always-so-easy-to-predict positions. The "experts" and pundits would have us believe that the Justices had already made their decisions, even before oral arguments, that a narrow ideological labeling of the Justices is, alone, sufficient to predict the outcome of the case.

The simplistic reasoning: the four "conservative" Justices (Scalia, Thomas, Alito, Roberts) will vote to repeal the mandate and potentially the entire Act, the four "liberal" Justices (Ginsburg, Sotomayor, Kagan, Breyer) will vote to uphold it, and Kennedy will be the deciding vote. Based on the oral arguments, the experts and pundits have mostly decided that Kennedy will go conservative on this issue. And things may go exactly this way. It's certainly a strong possibility. But then again, they may not.

A causal observer of the Court may be tempted to buy into these apparent lines of division--given by the media--on major cases as evidence that the Court always follows such a pattern. Moreover, the insidious assumption that all Court members are driven by ideology alone may also be taken as some sort of truth. In this regard, we all know who the extremists are, right? Thomas on one end (the Right), with Ginsburg on the other end (the Left). Further, according to a good chunk of the media, Thomas is not all that bright--as far as Justices go--and simply goes along with Scalia on all issues.

So, are there any cases that might call into question such assumptions? Well, most recently there is CSX Transportation, Inc. v. Alabama Department of Revenue, a case decided in 2011. Briefly, CSX Tranportation--a railroad company--sought to take the State of Alabama to court over a tax on diesel fuel. The company argued that the tax violated provisions of a federal law which forbid discriminatory taxes on railroads, the Railroad Revitalization and Regulatory Reform Act of 1967. The argument was based on exemptions from this tax being enjoyed by trucking companies, but not by railroads. The issue, therefore, was what exactly constituted a discriminatory tax.

Essentially, CSX was saying that if anyone received any kind of tax exemption or tax break that could also benefit CSX, then CSX should receive that same exemption or break. And to that end, CSX felt it should be allowed to sue the State and force its hand. The District Court dismissed CSX's suit and the Eleventh Circuit confirmed that ruling, but the Supreme Court ultimately reversed the District Court. The lone dissenters were Thomas and Ginsburg.

Kagan authored the majority opinion. She tried--and failed, in my opinion--to walk a narrow line, wherein some exemptions could be discriminatory as a matter of course, if there was "no reasonable distinction" between parties, ones enjoying exemptions and ones not.

Thomas authored the dissent and was joined by Ginsburg. Yes, that's right. Ginsburg and Thomas not only came down on the same side in this issue, but Thomas actually wrote the opinion. Thomas argued that the the plaintiff, CSX, simply had not made the case for discrimination. While he--and Ginsburg--agreed that such taxes could be discriminatory, they were not as a matter of course, simply because CSX said they were. Thomas' dissent takes a careful look at what "discriminatory" actually means, from a legal standpoint. And he ultimately finds--and again, so does Ginsburg--that there must be some sort of singling out going on:
I would hold that, to violate §11501(b)(4), a tax exemption scheme must target or single out railroads by comparison to general commercial and industrial taxpayers. Although parts of the majority’s discussion appear to question this standard, see ante , at 8–11, the limited holding does not foreclose it. Because CSX cannot prove facts that would satisfy that standard in this case, I would affirm.
There are many industries impacted by the tax in question. Simpy because one or two enjoy an exemption, it does not follow that rail carriers have a right to the same, by virtue of a federal law. That's the heart of the matter, right there. The purpose of the Reform Act was--as Thomas notes in his dissent--to prevent localities from hammering non-resident and non-local businesses with taxes, in particular property taxes, not to carve out a special set of privileges for railroads that would trump a State's ability to levy taxes as it sees fit.

My editorializing aside, this case demonstrates something that seems to have escaped the minds of so-called experts and pundits alike: the Justices are actual thinking people, not the cardboard caricatures they are often portrayed to be. In this case, Ginsburg agrees with Thomas and Thomas disagrees with Scalia, two things that just aren't supposed to happen. And this is not the first time this has happened, nor will it be the last. So I would advise everyone out there waiting for the SCOTUS decision on the Affordable Care Act: don't count your chickens just yet.

Cheers, all.

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