In the aftermath of his death, lots of people have written a lot of analysis, commentary, and conspiracy about Justice Antonin Scalia. It’s hard to overstate his influence on Supreme Court jurisprudence or on constitutional analysis. And it’s hard to overstate the virtuosity of his written opinions—whether you agree or not, they’re thoughtful, consistent, and they explode with the sheer joy of language. In a genre not always known for being fun to read, Scalia’s opinions were often fun to read.
And yet, while I’m aware of his judicial and constitutional philosophies, his opinions have had little direct application to my professional life. I decided to take a look at his tax opinions.
In trying to narrow down Scalia’s tax opinions (in a quick-and-dirty way; this is a blog post, after all, so I wasn’t shooting for perfection), I ultimate hit on the Supreme Court Database. Using its tools, I tried to find all of the federal tax opinions authored by Scalia; ultimately, it found six cases. Actually reading through the cases, it turns out that the majority opinion in United States v. Cleveland Indians Baseball Co. was authored by Justice Ginsburg, leaving five Scalia-authored federal tax opinions:
- O’Connor v. United States
- Commissioner v. Bollinger
- Atlantic Mutual Insurance Co. v. Commissioner
- United States v. McDermott
- United States v. Woods
Of these five opinions, four were decided by a unanimous Court, while McDermott was decided six to three (with Justices Thomas, O’Connor, and Kennedy dissenting). Interestingly enough, four of his five tax opinions were written during his first seven years on the bench; in his last twenty-three years, he only authored a single tax opinion.[fn1]
And how are Scalia-authored tax opinions? They’re workmanlike, though they show little of the flair and fire he’s best-known for.
And the lack of flair and fire makes sense; in the tax cases, he’s not dealing with original intent. He’s not dealing with plain language. He’s dealing with complex commercial transactions and statutes with undefined, ambiguous language. So his tax opinions get the job done, without doing much more.
It seems pretty clear to me that Scalia had no passion for tax. And that’s not necessarily a bad thing—plenty of law students and attorneys avoid it at all costs.[fn2] But it would explain why Scalia has authored so few tax opinions, why they lack his usual fireworks, and why he appears to have almost entirely avoided them over the last quarter century.
[fn1] To be clear, he may well have authored concurring and dissenting opinions in tax cases; I only looked at his majority opinions.
[fn2] (Even if they really shouldn’t.)