In my article, Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to be Tax Lawyers, 13 Va. Tax Rev. 517 (1994), I noted the Supreme Court’s reluctance to hear tax cases:
The view that tax law is less interesting or important than other areas of law pervades even the Supreme Court. For example, one proffered explanation for Justice Marshall’s productivity in the tax field is that the conservative Chief Justices under whom he served refused to assign him more important cases: "Justice Marshall was forced to write on federal income tax because he was given nothing better to do."[Fn 24] Other members of the Court apparently also share this view of the tax law. For example, when asked why he sings along with the Chief Justice at the Court’s annual Christmas party, Justice Souter replied, "I have to. Otherwise I get all the tax cases."[Fn 25] Similar remarks have been attributed to other justices.[Fn 26]
Fn 24: Stephen B. Cohen, Thurgood Marshall: Tax Lawyer, 80 Geo. L.J. 2011, 2039 (992). See also Dick Lehr, Associates, Scholars Hail Contributions, Boston Globe, Jan. 25, 1993, at 1, 6 ("[I]n the middle of a lofty legal discussion about a boring tax case, [J]ustice Marshall leaned over to [J]ustice Powell and said ‘You can have my vote on this for a future draft pick.’").
Fn 25: Paul M. Barrett, David Souter Emerges as Reflective Moderate on the Supreme Court, Wall St. J., Feb. 2, 1993, at A1; cf. United States v. Hill, 113 S. Ct. 941 (1993) (definition of oil depletion allowance for alternative minimum tax purposes) (Souter, J.).
Fn 26: See Bob Woodward & Scott Armstrong, The Brethren 362 (1980) ("’This is a tax case. Deny.’ That was [Justice] Brennan’s normal reaction to a [certiorari] request in a tax case."); Stuart Taylor Jr., Powell on his Approach Doing Justice Case by Case, N.Y. Times, July 12, 1987, at 1 (Justice Powell describing cases "’you wish the Chief Justice had assigned to some other Justice.’ A deadly dull case, ‘a tax case, for example.’"); Stuart Taylor Jr., Reading the Tea Leaves of a New Term, N.Y. Times, Dec. 22, 1986, at B14 ("If one’s in the doghouse with the Chief [Justice Burger], he gets the crud. He gets the tax cases . . . .") (quoting Justice Blackmun).
The March ABA Journal notes that Supreme Court law clerks are similarly tax-averse:
In his article [The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. ___ (2007), David R. Stras (Minnesota)] raises the question of whether hiring more experienced clerks, or a group of staff lawyers whose sole responsibility is reviewing cert petitions, would benefit the process, particularly for parties whose cases focus on specialized legal areas such as tax law. “I do tend to think that the appeals falling through the cracks are things the clerks are less interested in,” he says.
Stephanie Ward, Clerks Avoid Getting Their DIGs In; They Just Say No to Cert Petitions, as the Court’s Docket Shrinks, ABA Journal, March 2007.
