Supreme Court Review, Vol. 1989 (1989), pp. 223-259


The Supreme Court's outpouring of significant state tax decisions in recent years has elicited little more than a yawn from most constitutional scholars. The nation's preeminent law reviews, which once were filled with articles examining the Court's state tax opinions, pay scant attention to them today. Leading constitutional law casebooks make only passing reference to state taxation. Indeed, the Court itself has expressed ennui over the prospect of adjudicating a seemingly endless stream of state tax controversies. The lack of academic interest in the Court's state tax jurisprudence may be attributable to several factors. Matters of greater cosmic significance -- abortion, affirmative action, and capital punishment, to name a few -- may have crowded state tax questions off scholarly agendas. The complex and technical rules that often inform state tax disputes may have led other scholars to embrace the view of a distinguished student of constitutional law: "pursuit of the intricacies of state taxation ... would require more time and space than the undertaking warrants." And the disrepute into which conventional doctrinal analysis has fallen in certain quarters may have induced still other scholars to avoid an area in which doctrinal concerns drive the judicial process and political and social considerations play a distinctly secondary role. Whatever the reason, the fact remains that the Court's output in this domain has been extraordinary, and its opinions have had an enormous theoretical and practical impact. The Court's 1988 Term was no exception: it considered eleven state tax cases and handed down full-dress opinions in eight, confronting issues arising under the Commerce, Due Process, Equal Protection, and Supremacy Clauses, the First and Eleventh Amendments, and the intergovernmental and Indian immunity doctrines. The constitutional landscape in the state tax field deserves some re-mapping in light of the Court's recent decisions.