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1 Travis Greaves, Justice Souter's Tax Opinions Show Steady Erosion of Respect for Commerce Clause 1 (2009)

handle is hein.taxfoundation/ffbhdxz0001 and id is 1 raw text is: FFISCAL June 2009FCT No. 173 FACT Justice Souter's Tax Opinions Show Steady Erosion of Respect for Commerce Clause By Travis Greaves Retiring U.S. Supreme Court Justice David Souter will be remembered for many things: being President George H.W. Bush's stealth nominee, a propensity to dissent, and his controversial deciding vote to approve the use of eminent domain for private purposes in Kelo v. City of New London. In cases involving taxation Justice Souter will be remembered for his antipathy. When asked why he sang along with the late Chief Justice William Rehnquist at the Court's annual Christmas party, he responded, I have to. Otherwise I get all the tax cases.' It is not surprising, then, that Justice Souter's contribution to tax jurisprudence is not as significant as those of his colleagues. However, as he leaves the bench it is worth reflecting on his votes and opinions in key tax cases. He was a frequent dissenter in other areas of the law, but in tax cases Justice Souter often sided with the majority. In West Lynn Creamery, Inc. v. Healy (1994),2 Justice Souter joined a 7-2 majority holding that the dormant Commerce Clause limits the power of a state to adopt regulations that discriminate against interstate commerce. The case concerned a Massachusetts law that imposed an assessment on all milk sold by dealers to Massachusetts retailers; the proceeds were distributed to Massachusetts dairy farmers. The majority found that such premium payments are effectively a tax that made milk produced out of state more expensive. Although the tax also applied to milk produced in Massachusetts, its effect on Massachusetts producers was entirely offset by the subsidy provided exclusively to Massachusetts dairy farmers. Injoining the majority, Justice Souter showed respect for the dormant Commerce Clause, reining in states' abilities to tax activity which had an effect beyond their borders. Another Commerce Clause/tax case on which Souter found himself in the majority was Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997).3 In that case, Justice Souter was the

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