Of the four Supreme Court arguments last week, Wednesday’s were the most interesting as the Court turned to controversial issues of race and state voter redistricting and the Dormant Commerce Clause doctrine.

Redistricting: Alabama Legislative Black Caucus v. Alabama & Alabama Democratic Conference v. Alabama

In the first argument, which consolidated two cases challenging Alabama’s race-conscious redistricting plans (which had previously been approved by the Obama Justice Department), the central legal issue before the Court was to what extent the state could consider the role of race in its redistricting. The plaintiffs were arguing that on the one hand, the Voting Rights Act required the states to create districts that contained minority populations of substantial enough size to allow meaningful choice in the election of candidates, thus taking race into account; on the other hand, states could not move district lines to incorporate too many new minority voters because that would be race-based “packing.”

During the first appellant’s argument, Justices Roberts and Scalia were troubled by the apparent Scylla and Charybdis that states would be required to navigate under the plaintiffs’ theory:

CHIEF JUSTICE ROBERTS: So you want, on the one hand – they obviously had to move new voters into the majority-minority districts because they were all underpopulated, and they need to move enough so that the minorities have an opportunity to elect candidates of their choice, but they can’t move too many because that would be packing, correct?
MR. PILDES: Your Honor, we understand that States are in a bind in this situation as has been true under Title VII and under the Voting Rights Act under Section 2.

The lawyer for the Alabama Legislative Black Caucus, Richard Pildes, did not appear to be able to assuage the justices’ fears on this point. Justice Scalia also observed that the plaintiffs’ objection to “packing” was similar to what defendants in such cases historically used to argue against black plaintiffs, an ironic twist.

Justice Kennedy worried that the plaintiffs’ legal theory would create a one-way partisan ratchet by allowing the legislature to consider race in creating majority-minority districts for partisan reasons, but then disallowing the legislature from undoing those changes for purely partisan reasons. (He repeated his concern about the one-way ratchet during U.S. Solicitor General Donald Verrilli’s argument, indicating that it was a significant issue for him.)

When the second appellant took the podium, the Alabama Democratic Conference, Justices Alito, Breyer, and Sotomayor drilled into the specificity of the asserted harms, i.e., whether the claims were made on a district-specific basis or statewide. Although Justice Kagan asked a question pointing out where in the record such specificity might be found, Justice Breyer remained concerned that the district court had erred in construing the complaint, requiring a remand and effectively resetting the litigation.

During the government’s argument as amicus, Solicitor General Verrilli picked up the specificity criticism. This prompted pushback by Justice Kagan about statements by the legislators who had drafted the redistricting plan who promised to maintain the racial composition of existing districts. Turning to the question of what would happen on remand, Chief Justice Roberts then queried whether Verrilli was concerned that redistricting on remand would no longer be subject to the Voting Rights Act’s preclearance requirement (thanks to the Court’s 2012 decision in Shelby County v. Holder). Oddly enough, he wasn’t.

Alabama Solicitor General Andrew Brasher faced aggressive questioning from Justice Kagan, who was skeptical that race had not predominated in several districts because the racial composition of these districts was “completely replicated” under the redistricting plan. Citing chapter and verse, however, Brasher relied on the factual findings below to make a detailed factual case that the redistricting was not motivated by intentional discrimination, that many districts had not changed racial composition at all under the new plan, and that alternative plans proposed by the plaintiffs had the same demographic proportions for most of those same districts. This didn’t seem to persuade Justice Kagan, though, who continued to point to the policy statement that she had referred to earlier.

At one point, Justice Kennedy asked what was the primary purpose of the new district proportions, leading Brasher to laying out another very detailed factual defense of the districts. In particular, Brasher repeatedly emphasized that the plaintiffs had never proposed a redistricting plan that could satisfy the state’s criterion of having no more than 2% deviation in population from previous districts, which would preserve one-person-one-vote.

In all, I did not discern a clear lineup among the justices. I suspect we’ll see a divided opinion with Justice Kagan, Justice Kennedy, and Chief Justice Roberts writing significant opinions, but I’m not confident about much more than that.

Dormant Commerce Clause: Maryland State Comptroller v. Wynne

Immediately following that case, the Supreme Court heard arguments about whether the Constitution guaranteed a resident of one state the right to a credit for taxes paid to another state for income earned in that state.

The plaintiffs in this case were arguing that because Maryland structured its taxes to give incomplete credit for income taxes paid to another state, it would in effect would be charging its residents higher taxes for out-of-state income, Maryland was creating a tariff on interstate commerce. The lower court concluded that the dormant Commerce Clause—which I’ll get to in a moment—prohibited such an implicit “tariff.” Maryland’s argument was just what you’d expect: the state can tax the entire income of its residents, wherever earned. Thus, the state has no obligation to give credit for taxes paid in other states.

Three basic positions appeared to exist among the justices. Justice Scalia appeared to be of the “life isn’t fair” school, as indicated in the first question of the argument:

JUSTICE SCALIA: Right, you’re on the principle that life is not fair, right?
MR. BROCKMAN: Life is not fair. Maryland taxes are. (Laughter.)

Justices Roberts and Kennedy seemed most interested in exploring the burdens of Maryland’s tax scheme on interstate commerce, with Justice Alito finally asking a question that pointed out the form/function question:

JUSTICE ALITO: The question is not whether California can tax the income of its residents wherever they make it or whether California can tax all income earned within the border of California. The question is whether it can do both, whether and that’s the question with respect to you. Can you tax all income earned within your border, whether by resident or by nonresident, and also tax income earned by your residents in in other States?
The tax economists’ brief points out that this what you’ve done operates exactly like a tariff, because it provides an incentive to earn income in Maryland and not outside of Maryland. Now, do you dispute that as a factual matter? And if you don’t dispute it as a factual matter, why shouldn’t this tax system meet exactly the same fate as a tariff?
MR. BROCKMAN: I don’t dispute the mathematics. They lose me when they switch from tariffs to income taxes, but I’m not an economist. The difference, though, is that the we’re talking about the effect of two States’s axes. Now, they’ve talked about two States’ taxes by using what they call a heuristic device of hypothesizing that the other State has the exact same set of taxes. Fine. We can do that, too.
But the point is that it’s the combined effect. That means that Maryland’s taxes, the validity of Maryland’s tax, will turn on how another State exercises its taxing powers.

This point generated some interest from Justices Scalia and Ginsburg, who appeared to support Maryland’s claim to having an independent taxing power. But Chief Justice Roberts again drove toward the form/function argument:

CHIEF JUSTICE ROBERTS: . . . The way you test under our precedents whether one State has to yield or not is to say, well, let’s suppose each State does exactly the same thing, neither one is yielding. And as indicated earlier, the example in the Respondents’ brief is that if each State did what we’re talking about, people who work in one State and live in another would pay higher taxes overall than people who live within one State and work in the same State. And that sounds to me like a tariff.

During the plaintiffs’ argument, Justices Ginsburg, Kennedy, Sotomayor, and Kagan focused on the free-rider problem created by application of the dormant Commerce Clause to the plaintiffs, asking why it was fair that a resident of Maryland should get away with paying Maryland no taxes based on credit for out-of-state income.

My best guess is that a majority composed of the court’s liberals and Chief Justice Roberts (and perhaps Justice Scalia concurring in the judgment) will end up supporting Maryland. Justices Kennedy and Alito were more skeptical of the tax regime, so I don’t know quite where they will go.

Whatever the final lineup, I suspect we will see a separate opinion by either Justice Scalia or Thomas decrying what Justice Scalia called the “imaginary negative Commerce Clause.” Originally established in 1873 after being the subject of Supreme Court dicta for 50 years, this doctrine is effectively a quasi-penumbral view of the Commerce Clause: only Congress has the power to regulate interstate commerce; therefore states cannot do so, even when Congress hasn’t exercised its power.

Justice Scalia made his views about dormant Commerce Clause doctrine known shortly after joining the court. In his separate opinion in Tyler Pipe Industries v. Washington State Dept. of Revenue (1987) (citations omitted), he wrote:

It takes no more than our opinions this Term, and the number of prior decisions they explicitly or implicitly overrule, to demonstrate that the practical results we have educed from the so-called “negative” Commerce Clause form not a rock but a “quagmire.” Nor is this a recent liquefaction. The fact is that in the 114 years since the doctrine of the negative Commerce Clause was formally adopted as holding of this Court, and in the 50 years prior to that in which it was alluded to in various dicta of the Court, our applications of the doctrine have, not to put too fine a point on the matter, made no sense.

And Justice Thomas wrote a separate opinion in United Haulers Ass’n v. Oneida-Herkimer (2007) (citations again omitted):

The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

The Court will take the remainder of November off from arguments and begin again in early December.