<< Oral Argument in US v Cal Sanctuary Case | Main | NH Gov Vetoes Death Penalty Repeal >>


Occasionally Supreme Court Justices admit they got it wrong in a previous opinion.  In the interstate sales tax case today, South Dakota v. Wayfair, Justice Thomas gives us a nice little variation on this theme.  He admits that 26 years ago he was wrong for not joining Justice White's admission that he had been wrong 25 years before that.  Here is Justice Thomas's concurrence in its entirety.

Justice Byron White joined the majority opinion in National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967). Twenty-five years later, we had the opportunity to overrule Bellas Hess in Quill Corp. v. North Dakota, 504 U. S. 298 (1992). Only Justice White voted to do so. See id., at 322 (opinion concurring in part and dissenting in part). I should have joined his opinion. Today, I am slightly further removed from Quill than Justice White was from Bellas Hess. And like Justice White, a quarter century of experience has convinced me that Bellas Hess and Quill "can no longer be rationally justified." 504 U. S., at 333. The same is true for this Court's entire negative Commerce Clause jurisprudence.See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to "surrende[r] former views to a better considered position." McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring). I therefore join the Court's opinion.
Justice Gorsuch also expresses doubt about the whole "dormant Commerce Clause" business.  He hints that many of the results in those cases might be "defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV's Privileges and Immunities Clause" but that is a "question[] for another day."

Dumping the "dormant Commerce Clause" without something else to protect interstate business from local protectionism might or might not be good jurisprudence, but it would certainly be disastrous economics.  Congress can, and IMHO should, step in and pass an overall anti-discrimination statute.

Leave a comment

Monthly Archives