Hold On To Your Wallets

Today (January 12) was order day at the Supreme Court, and the Court granted 12 cases, which, barring cases that get an expedited briefing (say, Travel Ban 3.0), fairly well rounds out the Court's docket for this term. (You can read the entire order list here.) You can read Amy Howe's take on the full argument list here. (She used to be SCOTUSblog and still writes for them along with her own blog, which is well worth your time if you want to follow the Supreme Court in detail).

As I mentioned in my last post, 17-494, South Dakota v. Wayfair was a case to follow and sure enough, the cert petition was granted today after only going through two conferences, and that most likely was only because the reply brief in support of cert was filed by South Dakota the same day it went to the first conference. You can see the whole list of docket entries (but not yet including today's order) here, which will give you some idea of how much interest this case has already generated. You can read any of the documents filed to date, including the cert petition, here at SCOTUSblog, probably my favorite non-Court site.

Why did I title this post "Hold On To Your Wallets"?  Because this case could end those blissful days of not having to pay your state sales tax (if you have one) on your internet purchases.  Right now, the controlling case is Quill Corp. v. North Dakota,
504 U.S. 298 (1992), which requires the internet seller to have a "physical presence" in the state to be required to collect state sales taxes.  Yet the history of this doctrine is interesting.  Quill is in fact based on a case from 50 years ago, Nat’l Bellas Hess v. Dep’t of Rev. of Ill., 386 U.S. 753 (1967). Attentive readers--and Justice Kennedy who, along with Justice Thomas and Justice Gorsuch, has argued for the reevaluation of Quill--will see that Nat'l Bellas Hess predates the internet, at least the internet (and internet shopping) we all know and love. The cert petition makes a very convincing case to overrule Quill, which is the only issue before the court, based on both the law (even the Quill court said the doctrine would be retained "at least for now") and the developments of internet-based commerce.  Faithful readers know that they (South Dakota) convinced (at least) four Justices to vote to grant, and Kennedy, Thomas, and Gorsuch are almost certainly three of the four. The brief in opposition to cert is the legal equivalent of "move along, nothing to see here", arguing both that things are just fine, thank you, and besides, Congress should solve this issue, not the Supreme Court.  (They also argue that the case is non-justiciable (check out my post of November 29, 2017, on justiciability) because essentially there is no factual record and that South Dakota just accepted a judgment against itself to set up the appeal to the Supreme Court.  Should make for some very interesting briefs).

Now that the case has been granted, the industry parties have to convince the Supreme Court that Quill, good "at least for now" in 1992, is still good "at least for now" despite 15 years of technological development or, if it's no longer viable, it's up to Congress, not the Supreme Court, to fix (part of the non-justiciability argument (political question)).  I think it's an uphill climb for the internet sellers.  As I said, hold on to your wallets.



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