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Argument recap: That old slippery slope — again


It happens so often as to be nearly commonplace: a lawyer goes to the Supreme Court lectern with a simple argument, mainly good for that case alone, only to wind up being tasked to defend the argument in a variety of other contexts, maybe even some that seem quite beside the point.  That happened on Wednesday to Washington attorney Mark T. Stancil, but probably fortunately for him, the Justices who wanted to push his case down a slippery slope seemed to be in the minority.   His core argument appeared to sit quite well with the rest of the Court.

It was easy to say where Stancil was going from his opening sentence in the tax equality case of Armour, et al., v. Indianapolis (11-161) . He said that his clients, home-owning taxpayers, had to pay 30 times more than their neighbors to hook up to the city’s sewer system.  And the only difference was that his clients paid their sewer assessment bills in a lump sum, and the neighbors stretched out their payments and then had their remaining tax debt cancelled.  That, the lawyer said, was inequality, and it was unconstitutional.

“I understand your argument,” Justice Sonia Sotomayor said promptly, but ominously.   What happens, she asked, “to all of the other amnesty programs” that governments might want to adopt, like forgiving parking ticket penalties for those who pay up, or granting illegal immigrants a right to stay in the country, leading only to claims of inequality by others who did not get the benefit.  The logic of Stancil’s argument, she said, was that there will be “no circumstances where the government can treat people differently.”

The taxpayers’ lawyer said that was not so.  “Context is critical,” he remarked.   When Sotomayor tried again, wondering if a motorist who got stopped by a police officer would have a legitimate legal complaint if some other motorist was let go — presumably for the same traffic offense.  That, Stancil remarked, is not an irrational use of government power, but when there are 181 taxpayers and 31 of them are going to pay 30 times more for a public service, that is irrational.

When Justice Ruth Bader Ginsburg wanted to find out whether giving refunds to Stancil’s clients would only lead to demands for repayment on other public works projects, costing Indianapolis a lot more money, the lawyer sought to minimize the impact on other projects, but suggested that refunds actually would be necessary under his theory only for a “gross disparity.”

Justice Stephen G. Breyer, seemingly sharing the sentiment that a ruling for Stancil would have considerably wider, and negative impact, on city government operations, began dominating the argument, probing in a variety of ways how far Stancil’s case might take the Court into constitutional oversight of urban public works financing.  He was joined in that effort, part of the time, by Justice Elena Kagan.  But Justice Antonin Scalia stepped in at various points to bolster the taxpayers’ constitutional grievance, and so did Chief Justice John G. Roberts, Jr.

Scalia, reacting to some of the Justices’ questioning about the potential cost to Indianapolis if it did have to pay refunds for those who had paid in full, sarcastically remarked that he could recall no case where government action was found to be so expensive to treat people equally that the constitutional promise of equality had to give way.

Although Stancil made repeated efforts to keep the focus on the financial plight of his 31 clients, Breyer was persistent in trying to enlarge the issue before the Court.  Hundreds of government programs, Breyer said, would be affected.  “It is going to be a nightmare,” he added, and then suggested that one could go through the federal tax code and find many instances where some taxpayers are treated more favorably than others, and perhaps all of those differences would now be subject to constitutional challenge.   If that were a real risk, Stancil slyly remarked, the Internal Revenue Service would have come into this case to defend the code.

Again, Scalia interjected to offset Breyer: Is there a nightmare exception to the guarantee of equal protection under the Constitution?

The lawyer appearing for Indianapolis, Washington attorney Paul D. Clement, was more than eager to keep the conversation centered on the broader implications of the taxpayers’ refund pleas; his brief on the merits was full of foreboding about urban policy making if officials were constitutionally punished for abandoning old financing arrangements that were not working.

But Justice Samuel A. Alito, Jr., quickly objected to Clement’s plea for power to make a “clean break” from an existing policy.  The switch in Indianapolis, Alito suggested, was made solely because it was “more politically acceptable.  If that’s the reason, is that rational?”   The decision was more than that, Clement responded; it was a move for “good government,” to get free of a financing scheme that was infirm.  What Stancil’s clients want, he suggested, was to keep the city locked in for another 30 years to a very unpopular program.  If cities have to do that, he argued, none would ever adopt a policy of giving any taxpayers a forgiveness of their future debts to the city.

That remark only prompted Justice Anthony M. Kennedy to show sympathy with the taxpayers.  If the Court were to rule for Clement’s client, Kennedy remarked, it should put into its opinion “Don’t trust the government” to keep its promises.  (Indiana law, Stancil had said, guaranteed equality in sewer tax assessments, and the taxpayers’ case relies heavily upon that promise.)

Chief Justice John G. Roberts, Jr., also took on Clement.  The equal protection problem had arisen in Indianapolis, Roberts said, because of the policy switch itself.  “The change in the law,” he said, “went from treating people equally to treating them unequally.”  He then picked up on Stancil’s claim that his clients had paid 30 times more for their sewer connections than other home-owners.    The Chief Justice, at another point, reacted tartly to Clement’s suggestion that one would have to “look in vain” at Indiana law to find an explicit promise to treat taxpayers equally: the Chief read to Clement the specific law that seemed to Roberts to make just such a promise.

Between Roberts, Alito, and Scalia, the taxpayers seeking the refunds found an increasingly sympathetic audience. Along the way, Justice Anthony M. Kennedy, though perhaps with somewhat less enthusiasm, also seemed skeptical of Indianapolis’s justification for forgiving taxes for some while refusing refunds to others.

As the argument moved on, the signs mounted that Clement’s more complex argument was having difficulty, for at least some of the Justices, in countering the simplicity of his opponent’s challenge.  Indeed, it was not a good sign for Indianapolis that members of the Court started examining how a remedy should be fashioned in the event that the city lost: whether to wipe out the forgiveness for the taxpayers who still had outstanding sewer debts, or to find some way to compensate the taxpayers who had previously paid in full.

As Stancil returned for rebuttal, again emphasizing the special plight of his client taxpayers, Justice Kagan expressed new worry about the impact of a victory for those taxpayers.  She was concerned, she said, how a city could make any kind of “transition” away from one policy to another, if equal treatment were as much an inhibition as Stancil seemed to be advocating.   Stancil simply replied that, if a city promises equal treatment, it has to stick with that unless it can rationally justify not doing so.




Recommended Citation: Lyle Denniston, Argument recap: That old slippery slope — again, SCOTUSblog (Feb. 29, 2012, 1:55 PM),