Probably there is nothing I can do to convince you, reader, that you should be interested in today’s decision in Maryland v. Wynne. Not only is it a tax case, but it is also a dormant commerce clause case, and the decision seems to turn on arcane disputes about the scope of the holdings of earlier, incomprehensible, dormant commerce clause tax cases. Still, let me try. For one, it features one of the more unusual lineups you’ll see: Scalia, Thomas, Ginsburg, and Kagan are the dissenters. Alito and Scalia trade blows, Scalia of course more caustically, calling the majority’s result “fraudulent.”
Those soap opera elements aside, the bedrock issues for both sides turn on federalism, game theory, and the institutional role of the Supreme Court. Justice Ginsburg’s dissent claims that the Court denies states the power to require that “those who live or work within the State shoulder their fair share of the costs of government.” But she’s wrong about that. What the majority actually decides is that States cannot exercise that power unilaterally.
Let’s get the tax bits out of the way first.