To take Justice Neil Gorsuch at his word, the Supreme Court’s consideration of Moore v. United States Tuesday was littered with landmines and replete with the threat of an avaricious Congress targeting regular people’s savings as a tax windfall.
“If the only bar to Congress from enacting a tax on millions of Americans’ retirement accounts and mutual funds is administrability — they’re pretty clever over there, aren’t they?” he slyly asked U.S. Solicitor General Elizabeth Prelogar. “They know how to get around administration concerns pretty well, don’t they?”
The threat posed by Moore, a seemingly wonky and hyper-specific case centered on a disgruntled couple trying to evade a one-time tax related to gains from a foreign company — a tax, surprisingly enough, enforced by the 2017 Trump tax cuts — has nothing to do with the typically meager savings of most Americans. The real risk, experts warn, is that by upending years of precedent and redefining “income,” the Court would both effectively head off wealth tax proposals that have gained steam on the left in recent years, and provide a bounty to the ultra-rich and corporations that benefit from these alternative streams of money.
If the Supreme Court adopted the new income definition proposed by the Moores — and by their supporters found everywhere from the Wall Street Journal’s opinion pages to right-wing nonprofits to Justice Samuel Alito’s favorite interviewer-turned-lawyer for the Moores — it would cause a “sea change in the operation of the tax code and cost several trillions of dollars in lost tax revenue,” per Prelogar.
Gorsuch served as the tip of the spear for the right-wing justices, laying on thick concerns about Congress coming for the 99 percent and accusing the government — not the Moores, who are asking the Court to completely redefine income — of recklessness.
“If I’m working within this Court’s precedents — I don’t consider them wholly ‘misguided’ — if I’m not willing to overturn 100 years of precedent, which you’re asking us to do,” he began a question, weaponizing the government’s description of one of the old cases involved.
The question was pointed enough that Justice Elena Kagan served it up to Prelogar again right after Gorsuch’s questioning.
“Justice Gorsuch said you were asking us to overrule 100 years of our precedent — sounds bad,” she quipped, prompting laughter in the courtroom. “Are you?”
Prelogar responded that she was asking the justices to follow their precedent, not to overturn it.
While the other conservatives didn’t exhibit the same degree of outward hostility that Gorsuch did, they did their part to frame the case’s question as one of the masses, not the very richest who have unique access to complex income streams and offshore holdings.
Alito painted a picture of a humble college graduate starting up a business in his garage and becoming a billionaire 30 years later (sound familiar?), the very encapsulation of the American dream.
“Can Congress tax all of that on the grounds that it is income?” he asked.
Despite Prelogar’s best efforts, the right-wing justices generally adopted a habitual Republican posture to frame hypothetical future efforts to make the very wealthy pay more in taxes: Not as a remedy to the widening chasm of inequality, but as an existential threat to the working man.
“Would you agree, general, that when the Court opens a door, Congress tends to walk through it?” Gorsuch asked, cutting Prelogar off as she started to answer in service of adding brush strokes to his painting of existential threat.
