Justice Samuel Alito isolated in tax case he refused to recuse from

The Supreme Court heard what could be a radical challenge to the nation’s tax laws Tuesday, with the majority of justices—including most of the conservatives—seemingly looking for a way to rule as narrowly as possible, demonstrating restraint at a time the court is facing unprecedented scrutiny and unpopularity.

This particular case received heightened attention thanks to Justice Samuel Alito and his refusal to recuse from it, even though Alito previously granted a long softball interview in The Wall Street Journal to one of the lawyers who brought the case, David Rivkin. The WSJ article was a grievance-fest for Alito in which he declared that both he and the court are above the law.  

Not at all shockingly, Alito had the most sympathy for the plaintiffs in the case, sharply questioning Solicitor General Elizabeth Prelogar in her defense of the tax law, including, as Vox’s Ian Millhiser writes, “a surprising amount of time jousting with Prelogar about why lawyers in an 1895 tax case did not cite a different, 1871 tax case that Prelogar discusses in her brief.”

“These are, to say the least, very unusual arguments,” Millhiser writes. “Courts do not typically interpret the Constitution based on what a lawyer said during the Woodrow Wilson administration.” But if any of the justices are going to go there, Alito is the one to do it. Justice Neil Gorsuch was the only justice who seemed to be leaning Alito’s way.

Even Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett were skeptical of Alito’s—and the plaintiffs’—arguments that the tax law in question is unconstitutional. Kavanaugh interrupted one exchange between Alito and Prelogar to ask her a softball question, and Barrett similarly cut off Gorsuch. Thomas spent much of his time looking for a way to narrowly rule on the case. At one point, even Gorsuch agreed that “there is room for some narrow ground.”

What this means is that the court is unlikely to blow a hole in the tax code that could result in billions of dollars lost and a deluge of similar challenges to tax laws. It might mean that they limit Congress’ ability to levy new wealth taxes, but—other than Alito—they don’t seem ready to say Congress’ authority to pass tax law has been misinterpreted since the 19th century.

This is encouraging for the Treasury Department and for the nation. It’s further suggestion that public—and congressional—scrutiny continues to dampen the conservatives’ enthusiasm for overreach. It also looks like they’re not too anxious to align themselves with Alito.


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