The Supreme Court and State Taxation: 1998-1999, On the Straight and Narrow

In the October 1998 Term, the United States Supreme Court continued its recent trend of deciding relatively few cases. Only 80 oral argument slots - representing 90 cases - were filled, and those cases resulted in only 75 signed opinions. While the Supreme Court had not granted any writs of certiorari in cases involving state or local taxation issues at the conclusion of the 1997 Term, the Court eventually picked up three such cases for the 1998 Term, a slight improvement over the prior Term when the Court only gave plenary consideration to one state tax case. The Court, however, continues to deny certiorari in large numbers of cases involving state and local tax issues. During the time frame in which the Court was granting review in cases heard during the 1998 Term, the Court rejected 28 petitions raising state or local tax issues. The paucity of cases now heard before the Supreme Court led some members of the Supreme Court bar quietly to ask Chief Justice Rehnquist to modify the Court's argument calendar to reflect its waning docket. The Chief Justice, however, has always maintained that the Court's current docket is not the result of a deliberate attempt to reduce the number of cases heard, and the Chief Justice politely rejected the suggestion, stating that there [are] at least equally cogent reasons supporting the present arrangements. The exchange of correspondence, however, did result in one significant change. The Solicitor General, asked to comment on the practitioner proposal by the Chief Justice, declined to endorse the practitioners' proposal but did suggest that the Court begin granting certiorari petitions during the course of the summer. The Court did just that, issuing several grants in its order list of September 10, 1999. Unfortunately, as of the end of the 1998 Term, the Supreme Court had yet to grant review of any cases raising state or local tax issues. During the 1998 Term the Court did consider three state and local tax cases, one of which was quite significant to the state and local tax bar, as Alabama offered the Court a chance to abandon its prior negative Commerce Clause jurisprudence. In the two other cases, of less moment to private taxpayers, the Court considered the scope of the intergovernmental tax immunity doctrine. In so doing, the Court also defined the scope of the Tax Injunction Act.