Remember the Mama Mia song, “Money, Money, Money … All that I could do?” States may be singing it silently this morning as the justices take up the closely watched state sales tax case, South Dakota v. Wayfair. We look inside the briefs in the billion-dollar challenge and who will be making the case before the justices. Speaking of the justices—there were no new grants on Monday, but we note three interesting CVSGs and we update news of the first known Native American clerk on the Supreme Court. Decisions are expected this morning, so stay tuned Wednesday for more here at Supreme Court Brief.

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Billion$$$$$$ (in Sales Tax)

No, it's not the Showtime network drama. It's the pot of gold that a number of states say they see at the end of a Supreme Court case if the justices rule their way in South Dakota v. Wayfair.

Rarely does a tax case in the high court generate as much interest and news coverage as this one has. But the amount of money for cash-starved state budgets– $33.9 billion in 2018 by one estimate—and the implications for online retailers and consumers in today's e-commerce world have captured a wide range of interests, as evidenced in the 40 amicus briefs filed for and against South Dakota.

Here's a quick look at the case being argued this morning:

➞➔ What's the issue? South Dakota, in its designed-for-the-Supreme Court challenge, urges the justices to renounce their 1992 decision, Quill v. North Dakota. That decision reaffirmed a 1967 ruling that barred states from requiring online or remote retailers to collect sales and use taxes unless those retailers had a physical presence in the state.

➞➔ Why now? Blame Justice Anthony Kennedy and the growth of the digital age. In a 2015 concurring opinion in Direct Marketing Assn. v. Brohl, Kennedy urged the court to reconsider Quill and encouraged the “legal system” to find a vehicle for doing so.

➞➔ “Times have changed”: State Attorney General Marty Jackley will argue that the physical presence test was wrong under the dormant commerce clause in 1992 and more wrong today. The reason: “because, in the digital age where ubiquitous e-commerce is projected into our homes and smartphones over the internet, traditional 'physical' presence is an increasingly poor proxy for a company's 'nexus' with any given market or State.”

➞➔ “A barricade across the Internet superhighway”: Representing Wayfair, Overstock.Com and Newegg, George Isaacson of Brann & Isaacsonin Lewiston, Maine, emphasizes a recent report by the General Accountability Office which found that overruling Quill would prove particularly burdensome for smaller and medium-sized retailers that lack internal systems for multi-state tax compliance. It also would expose thousands of businesses to “crippling retroactive liability for uncollected taxes.”

➞➔ The U.S. solicitor general's solution: Deputy Solicitor General Malcolm Stewart shares argument time with South Dakota and offers a similar argument but with a twist. The government argues that Quill doesn't have to be overruled; it just shouldn't apply to Internet commerce. Restrict the physical presence test to the catalog business.

There are conflicting amicus briefs by members of Congress. House Judiciary Chairman Robert Goodlatte, R-Va., and 13 House and Senate Democratic and Republican members argue that the issue should be left to Congress which has constitutional responsibility for regulating interstate commerce.

Goodlatte, in a brief written by David Salmons of Morgan, Lewis & Bockius, skewers the solicitor general's argument that the physical presence test should be restricted to catalog sales and calls it an “upside-down approach to the Constitution.”

But two Democratic and two Republican senators, represented by Alan Morrison of George Washington University Law School, argue that Congress will act if Quill is overruled—as it should be—and states impose excessive burdens on remote retailers who have to collect sales taxes.

Three amicus briefs filed on behalf of neither party raise important questions with regard to sales tax collection by remoter providers of services, including legal services (brief by David Fruchtman of New York's Rimon); consideration of the import-export clause on international Internet sales (Prof. John Baker Jr. of Louisiana State University School of Law), and concerns for tribal authority to impose sales taxes and Indian immunity from state sales taxes (Sam Hirsch of Jenner & Block).

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Order of the Court: Ham and Eggs

Disputes between states that go to the Supreme Court under its original jurisdiction usually involve boundary battles or water wars.

The court was asked to referee a different kind of dispute in 2014, when states surrounding Colorado claimed that its legalization of marijuana was increasing crime and drug use in their jurisdictions. Then-solicitor general Donald Verrilli Jr. urged the justices not to take up the case, and the high court declined review in 2016.

Two similarly unconventional original cases that can be summarized as “ham and egg” disputes have caught the eye of the justices: State of Indiana, et al. v. Commonwealth of Massachusetts, and State of Missouri, et al. v. State of California. On Monday, the court invited the U.S. solicitor general to weigh in on both cases.

The first of the two disputes targets a Massachusetts law that takes effect in 2012, prohibiting farmers from in state and out of state from selling pork, veal and eggs in Massachusetts that are the “product of a covered animal that was confined in a cruel manner.”
Thirteen states led by Indiana claim the law will increase production costs and in effect impose regulations on non-Massachusetts farmers that would violate the Constitution's Commerce Clause.

To cement Indiana's standing, the brief filed by the state's solicitor general Thomas Fisher noted that Purdue University, a state school, is a “market participant” that sells products that would not meet Massachusetts requirements.

The second case takes aim at a California law that imposes humane standards for the treatment of egg-laying hens. “By its extraterritorial regulation of egg producers, California has single-handedly increased the costs of egg production nationwide by hundreds of millions of dollars each year,” Missouri solicitor general John Sauer wrote in his brief on behalf of 12 states.

➤➤ And there was another invitation Monday: The court asked for the SG's views in Gilead Sciences, Inc. v. United States ex rel. Campie, a False Claims Act case that has drawn interest from business and pharmaceutical groups. The petition by E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, representing Gilead, asks if an FCA allegation fails because of immateriality when the government continued to approve and pay for products after learning of alleged regulatory infractions.

First Native American Clerk … And Another?

Over the weekend we were pleased to report that Justice Neil Gorsuch had hired what appeared to be the first Native American law clerk in SCOTUS history: Tobi Young (left), a citizen of the Chickasaw Nation and currently general counsel of the George W. Bush Presidential Center.

When journalists report on superlatives—the first of anything, the biggest pumpkin in the county, the longest beard—we know it's an open invitation to be contradicted. Which is why our story hedged a bit, suggesting that Young was the first “known” Native American to become a law clerk. I (Tony) was fairly confident because in stories about the dearth of minority law clerks at the high court, I had mentioned there was never a Native American law clerk, and no one had ever corrected me.

After the story was posted, I heard there might have been another Native American law clerk: Notre Dame Law School professor Richard Garnett, who clerked for Chief Justice William Rehnquist in 1996 and 1997 and is an enrolled member of the Choctaw Nation of Oklahoma.

I contacted Garnett on Sunday, and he cleared things up. Garnett confirmed his status, but said that when he was a clerk for Rehnquist, he was not aware of his roots and was not an enrolled Choctaw member. It was only after the clerkship that he learned more about his ancestors, and he became an enrolled member of the Choctaw Nation of Oklahoma several years later.

Garnett joked that he fulfilled Rehnquist's desire for another kind of diversity among his clerks: Rehnquist wanted to hire at least one clerk from every state. The fact that Garnett lived in Alaska for a period seemed to satisfy Rehnquist.

ICYMI: James Forman Wins a Pulitzer

–> Yale Law's James Forman Jr. won a Pulitzer for his book “Locking Up Our Own: Crime and Punishment in Black America.” The former clerk to Sandra Day O'Connor recently told us: “Clerking exposed me to the dreary state of criminal defense representation in trial courts around the country,” Forman said in a recent interview with The National Law Journal.

–> The justices on Monday ”seemed to be mulling a flexible test for foreign patent damages Monday, with the categorical presumption against extraterritoriality taking a back seat,” writes our colleague Scott Graham, covering argument in WesternGeco v. Ion Geophysical.

–> The New York Times previews argument over the Trump administration's travel ban. Adam Liptak writes: “The justices will consider how much weight to give to Mr. Trump's campaign statements. And they will act in the shadow of their own decision in Korematsu v. United States, which endorsed Roosevelt's 1942 order and is almost universally viewed as a shameful mistake.”