The U.S. Supreme Court has added another type of document to its dustheap of once-respected resources for forming its opinions, along with law review articles and legislative reports.
The newly dissed artifact is called the Blue Book — not the Harvard Bluebook for citation styles, or the Kelley Blue Book that sets used-car prices. This Blue Book is published to explain new tax laws and is issued by the august Joint Committee on Taxation, an independent body composed of the top tax legislators in both houses of Congress.
On the next-to-last page of United States v. Woods, a tax-shelter case handed down on Dec. 3, the Supreme Court noted that the taxpayer Gary Woods had invoked the Blue Book as justification for his preferred reading of the law. Justice Antonin Scalia, writing for a unanimous court, brushed it aside.
“Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive,” Scalia sniffed. “But the passage at issue here does not persuade.”
Robin Greenhouse, a tax specialist in McDermott Will & Emery’s Washington office, said she was reading through the opinion soon after it came out and those two sentences “caught my eye.” Though the value of the Blue Book has been debated by courts for years, Greenhouse said, the high court’s discussion can be read as a significant “downgrade” of its importance.
“It is a valuable document that is relied on by taxpayers and the government,” she said. “It has an impact” — at least, until now.
Greenhouse wrote an online analysis of the ruling, concluding that the high court “has diminished the significance of the Blue Book in interpreting tax law and its use in supporting legal arguments in front of the courts.” If true, then the Blue Book will join the club of sources that the Supreme Court would just as soon ignore.
Two years ago, Chief Justice John Roberts Jr. threw law review articles under the bus when he said at a judicial conference, “Pick up a copy of any law review that you see … and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
‘A BRIDGE TOO FAR’
The sentiment has carried over to the court’s actual decision-making.
During the 1970s and 1980s, roughly half of all Supreme Court rulings cited at least one law review article, according to a study by Brent Newton at Georgetown University Law Center. In the first decade of this century, however, only about 37 percent of rulings mentioned a law review article.
Scalia’s longtime pet peeve has been “legislative history,” the reports and statements made by legislators and staffers that purport to explain the meaning of statutory provisions, as they are passed. As part of his long campaign to get his colleagues to focus almost exclusively on the words of a law, not its background noise, Scalia ridicules legislative history whenever he has a chance.
In a 2010 case, Scalia concurred with the majority opinion, except for a single footnote that mentioned legislative history, which he called “a bridge too far.”
Supreme Court advocates are usually advised not to mention legislative history during oral argument, unless they are prepared for a cutting remark by Scalia or are sure they can win without his vote.
Scalia’s newfound disdain for the Blue Book seems to flow from his views on legislative history. If contemporaneous statements by members of Congress and staffers are irrelevant, by Scalia’s lights, then an after-the-fact analysis by staff economists and accountants has even less saliency in Scalia’s book.
Congress created the Joint Committee on Taxation in 1926 as a nonpartisan entity with an expert staff that would analyze, help draft and estimate the revenue yield of pending tax legislation. After each term of Congress, it prepares a Blue Book explaining, and sometimes offering the background of, enacted tax laws. Officials of the committee declined to comment on Scalia’s opinion.
Farley Katz, a tax practitioner in Strasburger & Price’s San Antonio office, agreed that the Blue Book may have less interpretive value “since it is post­enact­ment.” But the publication can have some value in litigation, Katz said.
“I have cited Blue Books in the rare instances where they existed and had something to help my position that was not in the formal legislative history.”
Contact Tony Mauro at email@example.com.