South Dakota v. Wayfair (2018)

This is one of the strangest Supreme Court decisions ever.

First of all, there is the oddness of two Justices, Kennedy and Thomas, overruling themselves. They were both on the other side of the issue in Quill v. North Dakota (1992).

And then you have the conservative wing of the Court (1) ruling in favor of more taxes; and (2) ruling against stare decisis.

Meanwhile, except for the strange cross-over of Ruth Bader Ginsburg, the other liberals on the Court, Breyer, Sotomayor and Kagan, sign on with Chief Justice Robert’s dissenting opinion in which he writes:

E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.

Conservatives see their decision as supporting states’ rights.

How would I have decided if I were on the Court? I would have decided with Roberts and the three liberal Justices. I don’t buy into the states’ rights angle at all. I support states’ rights more than most, but the right to tax E-commerce businesses in other states is not something that anyone was thinking about when the Constitution was written.

I think that the situation we had before Wayfair was economically stupid and unfairly discriminated against local bricks and mortar businesses, but the judicially imposed cure is even worse. If every state is allowed to impose its own weird sales tax rules on very small-time merchant, it will create a nightmare of compliance issues. And what happens if merchants just ignore it and don’t remit any sales taxes? How will the states ever know about it?

I think that the conservative thing for the Supreme Court to do is to not try to solve every problem that Congress refuses to deal with.