Maybe Brett Kavanaugh Can Save Conservative Supreme Court Justices From Their Judicial Activism

Carl Szabo | General counsel for NetChoice and law professor

Judge Brett Kavanaugh’s consideration for the bench could pull Supreme Court’s conservatives back from their recent lurch into judicial activism. Nowhere else was this judicial activism by Conservative judges more apparent than in last month’s 5-4 Supreme Court decision in South Dakota v. Wayfair.

This decision exposed countless small businesses to tax collectors from 46 states. In doing so, the court struck down a key Supreme Court precedent that required a business to be physically present in a state before it can be forced to collect tax there.

Unfortunately, the bad news doesn’t stop there.

This decision represented the sudden flip by the court’s existing conservative judges, whose ruling rejected their usual conservative foundation.

For years, conservatives have been able to fairly defend conservative judges’ decisions. Whenever liberals complained about a conservative justice’s “political” decision, conservatives could explain the basis in law. We’ve lauded these conservative justices as protectors of the court — making decisions based on the merits of what is, not what they think it should be.

Unfortunately, conservatives may find their defense of conservative justices weakened by the court’s decision in South Dakota v Wayfair, unless Kavanaugh is able to influence Justices Alito, Thomas, and Gorsuch to return to their originalist understanding of the constitution.

In their 5-4 ruling, these otherwise conservative judges issued a ruling that creates new tax burdens and reads more like legislative intent than legal basis.

The now retired quasi-conservative Justice Kennedy’s majority opinion cited a changing economic reality, inaction from Congress, and the need for increased tax collection by states as justification for overturning 50 years of court doctrine.

The other conservative justices — Alito, Thomas, Kennedy and Gorsuch — strangely sided with Ginsberg arguing the courts prior decisions were “unfair.” They talk about resolving “unfairness,” “disadvantages” and “tax shelters” rather than interpreting the law. This is the type of judicial activism from the bench that these typically conservative judges often decry.

Consider this line from the opinion, “Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in [1993].” In essence, these conservative justices are suggesting that the core components of the constitution must be reexamined under modern-day interpretations, an assertion you usually hear from liberal justices.

Previously on this very issue, Justices Kennedy and Thomas recognized and respected the importance of protecting prior decisions. But, last week, both threw Supreme Court precedent to the wind in an effort to ameliorate the cries of tax collectors and create new laws rather than interpret existing ones.

Justice Thomas even went so far as to pen his own opinion suggesting an abandoning of Supreme Court precedent, a move that seemed wholly out of character.

To provide context, since 1900 the Court has reversed itself just 13 times. Reversals, like the ones found in this decision are exceptionally rare. Even rarer is when the Supreme Court has twice previously upheld that same precedent.

It is ironic that liberal Justices Breyer, Kagan and Sotomayor are the ones opposing this lawmaking from the bench. In a dissent authored by Chief Justice Roberts, these four Justices rightly put the duty of addressing the internet sales tax issue with Congress — the legislative branch — and not the Court.

The dissent argued “there is nothing unfair about requiring companies that avail themselves of the States’ benefits to bear an equal share of the burden of tax collection. Fairness dictates quite the opposite result.” The majority opinion, including the input of Ginsberg, used the concept of what they considered “fair” to force businesses to collect more taxes. This was a disturbing rejection of originalism by our usually conservative justices, instead they chose to legislate from the bench.

Following the decision in Wayfair we should worry not only for the small businesses and taxpayers now at the whim of out-of-state tax collectors. We should also worry for the future of the Court as otherwise conservative judges seem willing to throw-off their duty to rule on the law and instead rule on political preference.

Hopefully, Judge Kavanaugh will work with existing conservative justices to find ways to limit their judicial activism. If appointed, he could help return Alito, Thomas, and Gorsuch to ruling on the Constitution as it is, not as they want it to be. That is why they were placed on the court in the first place.

Carl Szabo is general counsel for NetChoice, a trade association of eCommerce businesses and online consumers. Szabo is also an adjunct professor of privacy law at the George Mason University Antonin Scalia Law School.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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