Grauer on Justice O'Connor's Tax Jurisprudence

Myron Grauer (Capital) has published Justice O'Connor's Approach to Tax Cases: Could She Have Led the Court Toward a More Collaborative Role for the Judiciary in the Development of Tax Law?,  39 Ariz. St. L.J. 69 (2007).  Here is part of the Conclusion:

The story traced by this article is not a satisfactory one for someone who believes (as this author does) that refinements in the tax law should come from the collaborative efforts of all three branches of government: the Congress; the IRS, as representative of the executive branch; and the judiciary. The story of this article is of a Supreme Court Justice who at the outset of her career on the Court demonstrated not only an appreciation of the collaborative role the judiciary could play in the refinement of tax law but also a sophisticated understanding of the structure of our tax system. As a result, she appeared to be a Justice who could have led the Supreme Court in refining questions of tax law.

As time went on during her tenure, however, she became more formalistic in her approach to tax cases and allowed this formalism to preclude a truly collaborative role for the Court in refining tax law. Instead, she let precedent and administrative agency consistency override her better judgment. Perhaps the direction Justice O'Connor's approach to tax cases took is merely reflective of an overall trend in the Supreme Court toward a more formalistic jurisprudence that has developed during her tenure on the Court. Nonetheless, a very recent case indicates that Justice O'Connor might have been the person who could still have led the Court toward a more coherent approach to tax issues in spite of itself.