While watching the Sotomayor Confirmation Hearings (and I hope that you are, even if for a bit), you’ll hear lots of questions. What you likely won’t hear are any significant questions about tax. But don’t panic: it’s not surprising.
For one, Sotomayor has not written extensively about tax law. The one case that she is perhaps best known for is Knight v Commissioner, which was known as the Rudkin case when Sotomayor wrote on the matter. The case went all of the way to the Supreme Court eventually, with Chief Justice Roberts agreeing with Sotomayor’s decision but criticizing the way that she got there. If you’re interested in reading more about Sotomayor’s judicial decision, you can check out this Analysis of Selected Opinions, put together by the Congressional Research Service (it will download as a pdf).
But more significantly, the Supreme Court just doesn’t hear many tax cases. For the term beginning in October 2007, for example, the Supreme Court agreed to hear five tax cases:
- Kentucky Department of Revenue v. Davis, No. 06-666 (state bond issue)
- Knight v. Commissioner, No. 06-1286 (trust administration fees)
- CSX Transportation Inc. v. Georgia State Board of Equalization, No. 06-1287 (railroad property valuation)
- MeadWestvaco Corp. v. Illinois, No. 06-1413 (state gain issue)
- Boulware v. United States, No. 06-1509 (diversion of corporate funds to a shareholder of a corporation)
During that same term, the US Supreme Court issued 73 opinions. Not great odds, despite the fact that 2007 appeared to be a banner year for tax cases on the SCOTUS, relatively speaking.
This doesn’t mean that tax cases may not hit the SCOTUS, they just may not be formally heard or disposed of.
Approximately 10,000 petitions are filed with the SCOTUS in the course of a term. A term lasts for a year, beginning on the first Monday in October and ends on the first Monday in October of the next year.
Written petitions for review are referred to as “writ of certiorari.” The SCOTUS can either grant a writ of certiorari (sometimes called “granting cert”) or choose to deny it (sometimes called “denying cert”).
Each week, Justices evaluate more than 130 petitions to determine which cases are to be heard. Four of nine justices must agree to take a case – no majority rule is required. They grant plenary review, meaning that there will be full oral arguments by attorneys, for about 100 cases per term. An additional 50 or 60 cases are reviewed without oral arguments.
So there’s lots of room to hear tax cases. The Justices have just not been amenable to hearing many. That perhaps says a bit about how settled tax law is in our country. Or it could have a lot to do with the quality (or lack thereof) of cases being submitted. Remember, just making it to the SCOTUS to ask to be heard doesn’t mean that your case has merit or matters to anyone but you. Just ask Richard Hatch.
Or it could just be that the Justices find them “boring.” When asked why he sang along with the late Chief Justice William Rehnquist at the Court’s annual Christmas party, Justice Souter responded, “I have to. Otherwise I get all the tax cases.”