Lee A. Sheppard (Contributing Editor, Tax Analysts) has published Tax Jurisprudence in a Roberts Supreme Court, also available on the Tax Analysts web site as Doc 2005-18537, 2005 TNT 176-7. Here is part of the Introduction:
What was the Rehnquist Court’s record on tax cases? The short answer is that the Rehnquist Court rarely accepted tax cases, unless they were state tax cases that presented constitutional questions. It wasn’t always so that there had to be a conflict between circuits for the Supreme Court to accept a federal tax case…
[A] Supreme Court that had Judge John G. Roberts Jr. as Chief Justice could hardly accept fewer federal tax cases. Judge Roberts clerked for Chief Justice Rehnquist, and he may well have inherited his mentor’s disdain for federal tax disputes. But at least the federal tax cases that a Roberts Court accepts are likely to be correctly decided. The most important federal tax case of the Rehnquist era, INDOPCO Inc. v. Commissioner, 503 U.S. 79 (1992), was correctly decided, although it was administratively reversed…
Judge Roberts wrote a lot about the sort of question that concerns our readers — the power of federal agencies. As a judge on the D.C. Circuit, he never wrote a tax opinion. But when questions of administrative power and discretion are concerned, the IRS is a federal agency like any other. A lot of federal agencies appeared before Judge Roberts. As the newest judge on the court, it fell to him to write the opinions on questions involving those agencies. So we have a copious record of Judge Roberts’s views on administrative power and statutory interpretation. Those dispassionate opinions are eye-openers, not just about his views but also about the functioning of obscure federal agencies…
This article provides a coherent sense of Judge Roberts’s approach. We don’t know how he feels about spotted owls, but we do know that he has an expansive view of administrative discretion. That might not be consistent with being a Reaganite, small-government conservative, but it is consistent with an elitist Establishment attitude that the president’s campaign advisers have taught the public to associate with Democrats. Agencies know what they’re doing, and the hoi polloi should just stop eating junk food in the subway.
The opinions show that Judge Roberts is a strict constructionist, as opposed to a judicial activist like other right-wing judges. Now, strict construction may well say that there is no right to privacy in the Constitution, but strict construction is no bad thing when it comes to interpreting tax statutes and regulations. If there’s no fuzzy intent read into statutes, that means no purpose or intent requirement can be grafted onto tax provisions. But when the statute gives the administrator discretion, the administrator’s judgment should be respected. Roberts’s federal agency opinions show that he is both able to master the details of truly arcane statutes and industry practices, while also seeing the bigger picture of the congressional purpose.
