Some Justices' Aversions to Tax Cases (8/4/23; 9/6/23)

 Over the years, I have accumulated some interesting insights from Supreme Court Justices on how they view tax cases. Generally, in the snippets I have accumulated, it appears that Supreme Court Justices (or some representative number of them) dislike tax cases. I wanted to say in my article that part of which may have motivated Justice Jackson, Wikipedia here, the author of a key deference case, Dobson v. Commissioner, 320 U.S. 489 (1943), here, (Caveat, Dobson is a key case but subtle on the issue of deference to agency interpretations; I discuss Dobson in my article; suffice it to say here Dobson adopted a strong form of deference to Tax Court interpretations, but treated the Tax Court as an agency (as the statute said it was); so the strong form of deference Dobson adopted can be applied to agency interpretations.)

I wanted to say in my article what may have motivated Justice Jackson to adopt a strong form of deference to Tax Court tax interpretations. There are some good reasons to do so--agency expertise, etc. But another reason might be that deference could prevent the courts from being overwhelmed where agency interpretations of the esoterica of tax law when deference would promote more uniformity in the tax law.  (Maybe there's some notion that tax interpretations are good enough for government work; for the surprising history of the idiom, see Good enough for government work and close enough for government work (Grammarist undated, here viewed 8/2/23)) .

In order to support that claim of Justice aversion to tax cases, I had a footnote addressing some anecdotal instances where Justices since then have asserted (sometimes tongue in cheek) aversions to tax cases. The source for some of these is an article titled "Tax Cases" at Greenbag here.

• Justice Souter when asked why he sang with Chief Justice Rehnquist at the Court’s annual Christmas party, responded “I have to. Otherwise I get all the tax cases.”  
• As reported in Bernard Schwartz, The Unpublished Opinions of the Rehnquist Court 7-8 (1996), “Some justices have said that they would rather volunteer to wash windows than be assigned the chore of writing tax opinions.”
• Justice Brennan’s normal reactions to tax case cert petitions: “This is a tax case. Deny.”
• Justice Blackmun, the only Justice with extensive tax background: “If one’s in the doghouse with the Chief, he gets the crud, He gets the tax cases, and some of the Indian cases.”
• Quoting Justice Powell:  “A dog is a case that you wish the Chief Justice had assigned to some other Justice.” A deadly dull case, “a tax case, for example.” 
• Scholars have also noted “the widespread view among the Supreme Court justices that tax cases are boring.”  Lawrence Zelenak, The Court and the Code: A Response to the Warp and Woof of Statutory Interpretation, 58 Duke L.J. 1783, 1789 (2009) (citing James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231, 1272-1273 (2009) (“"Some of the Justices likely deferred to Justice Blackmun simply because they were not interested in tax law - something Blackmun recognized inside the Court as well as in public statements.”).

It is interesting that the last quote said that some of the other Justices "deferred" to Justice Blackmun because of his practice prior to coming to the court and supposed interest in and expertise in tax. As my own poster child to show the other Justices should not have deferred to Justice Blackmun, see Frank Lyon Co. v. United States, 435 U.S. 561 (1978), here. And, it is notable that Justice Stevens. the author of Chevron dissented in Frank Lyon (rightly so, I think; I have some atypical reasons for believing that the Court accepted cert in Frank Lyon for one wrong reason, but I may develop that later.). Justice Stevens, not a tax lawyer, got it right; Justice Blackmun, a tax lawyer, got it wrong. Justice Blackmun's opinion for the Court in Frank Lyon breathed hope into the bullshit tax shelter industry that persisted well into the 2000s. I don't recall many tax shelter "more likely than not" opinions that did not claim support from Frank Lyon.

Added 9/6/23:

In preparing an article that features prominently Dobson v. Commissioner, 320 U.S. 489 (1943), I came across some more quotes, like sound bites, that grade the Supreme Court's output in tax cases as substandard which may be a reflected of the Justice's aversion to tax cases note above. Here are some:

Kirk J. Stark, The Unfulfilled Tax Legacy of Justice Robert H. Jackson, 54 Tax L. Rev. 171, 173 (2001) 

Tax lawyers have derided the Supreme Court, complaining that the Court "hates tax cases" and generally bungles the tax cases it does hear.19 Charles Lowndes echoed a longstanding sentiment of the tax bar  when he wrote, "[i]t is time to rescue the Supreme Court from federal taxation; it is time to rescue federal taxation from the Supreme Court.' 20 
   n19 See Erwin N. Griswold, Is the Tax Law Going to Seed? Remarks Before the Annual

Meeting of the American College of Tax Counsel (Feb. 5, 1993), in 11 Am. J. Tax Pol'y 1, 7

(1994). Writing about the Burger Court in 1975, Erwin Griswold commented that Supreme

Court Justices often find "no intellectual interest or challenge in tax cases....

Indeed,... it is hard to find a member of the present Court who has a real 'feel' for tax

law." Erwin N. Griswold, Foreword to Bernard Wolfman, Jonathan LF. Silver & Marjorie

A. Silver, Dissent Without Opinion: The Behavior of Justice William 0. Douglas in Federal

Tax Cases, at xii (1975) [hereinafter Foreword].

   n20 Charles L.B. Lowndes, Federal Taxation and the Supreme Court, 1960 Sup. Ct. Rev.

222, 222. The tax bar's disillusionment with the Supreme Court has provoked some scathing

critiques. See, e.g., Martin D. Ginsburg, The Federal Courts Study Committee on

Claims Court Tax Jurisdiction, 40 Cath. U. L. Rev. 631, 634-35 (1991) ([P]ractitioners

cannot expect, and surely, as rational men and women, practitioners ought not to hope,

that the Supreme Court will take too many tax cases. It is, history teaches, not a job the

high court performs superbly."); William A. Klein, Tailor to the Emperor With No Clothes:

The Supreme Court's Tax Rules for Deposits and Advance Payments, 41 UCLA L Rev.

1685, 1721, 1727 (1994) (characterizing Supreme Court tax opinion as "[gobbledegook"

and suggesting that Court may "lack the tools for effective development of new tax principles

and rules"); Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of

Judicial Process, 66 Cornell L. Rev. 1075, 1099 (1981) (noting that "[A] Supreme Court

opinion ought not become the basis for tax lawyers to make a laughingstock of the Court

as they now do ... ").

FYI, the Martin D. Ginsburg noted above was the husband of Justice Ruth Bader Ginsburg. I once testified that I believed he was the smartest tax lawyer in the universe. That was hyperbole but not much.