Greg Stohr at Business Week in High Court Limits IRS Time to Challenge Tax Shelters reports on the U.S. Supreme Court Decision in United States v. Home Concrete & Supply, LLC.
This is a VERY strange case in terms of the split of Justices as a 5-4 majority held in favor of the taxpayers, with Justice Breyer joining the majority and Justice Kennedy the dissenters.
Usually those two Justices are in opposite camps.
In this case Kennedy arguably took the path of reason in statutory interpretation while Breyer, the most intellectual of all the Justices, took the path of stare decisis no matter what, an intellectually understandable path, but in the instant case perhaps not optimal judging in a fact and law situation where the Court had a great deal of decision-making leeway.
Justice Scalia wrote a concurrence, shocking in parts, which raises fears that Scalia sometimes does not really understand the nature of the American federal government system of separation of powers. Congress MAKES laws. The Supreme Court is empowered to INTERPRET those laws.
SCOTUS had the power to decide this case differently.
"Obeying" Congress, as Scalia writes below, had nothing to do with it.
Scalia wrote in his concurring opinion inter alia:
"Rather than making our judicial-review jurisprudence curiouser and curiouser, the Court should abandon the opinion that produces these contortions, Brand X. I join the judgment announced by the Court because it is indisputable that Colony resolved the construction of the statutory language at issue here, and that construction must therefore control. And I join the Court’s opinion except for Part IV–C.We definitely agree with Scalia that the Supreme Court should be more predictable in its statutory interpretations of Congressional legislation than it has been -- something which is possible if Justices STOP deciding cases politically and stick to interpreting the law according to the letter AND spirit of the Constitution of the United States, rather than according to their own biases. 5-4 decisions should be rare exceptions, rather than the current RULE. If Supreme Court judging is merely an opinion poll, then it is a travesty of justice(s), sorry for the pun.
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I must add a word about the peroration of the dissent, which asserts that “[o]ur legal system presumes there will be continuing dialogue among the three branches of Government on questions of statutory interpretation and application,” and that the “constructive discourse,” “ ‘convers[ations],’” and “instructive exchanges” would be “foreclosed by an insistence on adhering to earlier interpretations of a statute even in light of new, relevant statutory amendments.” Post, at 7–8 (opinion of KENNEDY, J.). This passage is reminiscent of Professor K. C. Davis’s vision that administrative procedure is developed by “a partnership between legislators and judges,” who “working [as] partners produce better law than legislators alone could possibly produce.”2 That romantic, judge-empowering image was obliterated by this Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), which held that Congress prescribes and we obey, with no discretion to add to the administrative procedures that Congress has created. It seems to me that the dissent’s vision of a troika partnership (legislative-executive-judicial) is a similar mirage. The discourse, conversation, and exchange that the dissent perceives is peculiarly one-sided. Congress prescribes; and where Congress’s prescription is ambiguous the Executive can (within the scope of the ambiguity) clarify that prescription; and if the product is constitutional the courts obey. I hardly think it amounts to a “discourse” that Congress or (as this Court would allow in its Brand X decision) the Executive can change its prescription so as to render our prior holding irrelevant. What is needed for the system to work is that Congress, the Executive, and the private parties subject to their dispositions, be able to predict the meaning that the courts will give to their instructions. That goal would be obstructed if the judicially established meaning of a technical legal term used in a very specific context could be overturned on the basis of statutory indications as feeble as those asserted here. "
What concerns this observer about Scalia's above outburst is that in this case there was essentially an arguable conflict between a previous Supreme Court decision and new legislation by Congress, whereby the Justices could easily have found that a 6-year statute of limitations rather than a 3-year statute of limitations applied to the facts of the case -- based on laws passed by Congress and not by the Court.
To go into a tirade in this context about how the U.S. Supreme Court has to "obey" Congress is overstating the case, especially when the main argument of the majority is stare decisis and not Congressional obedience as the ratio decidendi for the decision!
The last thing that comes into this observer's mind when viewing the Supreme Court is that it is "an obedient servant" of Congress.
Quite the contrary, Judge Scalia, YOU and the rest of the Supreme Court are the final arbiters against legislative stupidity by that very same legislative body whose "obedience to" you tout.
The only people you have an obligation of obedience too, Judge Scalia, are the people of the United States, and, similarly, only obedience to the document that created their American nation, the Constitution of the United States of America.