Continuing with the fifth of my series of posts on the tax implications of recent non-tax Supreme Court decisions:
Although United States v. Gamble less directly implicates tax administration than the other cases discussed in this series of posts, I nevertheless think it warrants a mention. Gamble was not an administrative law case at all; it concerned double jeopardy and federal/state dual sovereignty. But like the other cases I have discussed in this series, Gamble involved the Court contemplating whether to overturn longstanding precedent. And Gamble was particularly notable for the discussion and disagreement among the Justices about stare decisis.
Retaining the Court’s dual-sovereignty doctrine, Justice Alito for a seven-Justice majority defended stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.” Justice Thomas concurred but wrote separately to assert that “the Court’s typical formulation of the stare decisis standard does not comport with [its] judicial duty under Article III because it elevates … decisions outside the realm of permissible interpretation … over the text of the Constitution and other duly enacted federal law” and “exacerbates [the temptation for judges to confuse their own preferences with the requirements of the law] by giving the veneer of respectability to [the] continued application of demonstrably incorrect precedents.” Justice Ginsburg dissented and argued for overturning the Court’s longstanding dual-sovereignty doctrine based at least implicitly on factors the Court previously has articulated for disregarding stare decisis: e.g., reliance, workability, changed circumstances, and inconsistency with other legal developments. Justice Ginsburg also noted that “stare decisis is not an inexorable command.” Justice Gorsuch in dissent emphasized this last point as well, and while he disagreed with Justice Thomas as to the outcome, he also observed that stare decisis “is ‘at its weakest when [the court] interpret[s] the Constitution.”
So what does all of this have to do with tax administration? Nothing directly. But as I hope this series of blog posts demonstrates, changes in administrative law doctrine do carry implications for tax administration. And whereas all of the other cases that I have discussed in this series merely contemplated whether and to what extent the Court might change one longstanding administrative law doctrine or another, Gamble was the case in which the Justices actively discussed the parameters of stare decisis as a limitation on doing so. In this way, Gamble offers an interesting angle for contemplating the mood that some Justices seem to hold for pursuing doctrinal change in the administrative law space.
One must take note, however, that the discussion in Gamble was at least somewhat particularized to stare decisis in constitutional rather than statutory interpretation. By comparison, when interpreting statutes, the courts have long embraced what now-Judge Amy Coney Barrett has described as “super-strong statutory stare decisis,” requiring changes in statutory interpretation to come from Congress rather than from courts. The distinction is particularly significant when one realizes that administrative law issues often have a foot in both the constitutional and statutory camps. I have always emphasized to my students the importance of framing in constructing administrative law arguments. One wonders whether the Court’s attitude and approach to deciding whether or to what extent to overturn a particular administrative law doctrine might be influenced by whether that doctrine is framed principally as constitutional or statutory when it arguably might be both.
To return to the first post in this series, click here.