The first of many lies at the center of Moore v United States, the major tax case that the supreme court decided on Thursday, was that the issue at stake was an existing tax law.
Conservative movement lawyers had taken up the cause of Charles and Kathleen Moore, a Washington state couple who own a substantial stake in an India-based company that manufactures farm equipment. The Moores were given a one-time, $15,000 tax bill for their stake in the company under 2017’s Tax Cuts and Jobs Act, the law colloquially known as the Trump tax cut. To pay for the steep cuts to federal revenue, that bill included a tax on foreign assets held by American shareholders – hence the bill that the Moores received from the IRS.
The Moores were nominally arguing that this provision was unconstitutional under the 16th amendment. But their argument was not confined to a narrow argument about that specific tax, because the case wasn’t really about the 2017 law at all. Rather, the Moores’ lawyers sought to use their case to drastically limit the scope of Congress’s taxation power, with an eye toward pre-emptively banning the wealth tax that has been proposed by the senator Elizabeth Warren.
The 2017 provision, then, was a mere pretext: the case that came before the court was a much broader project, one that, by some estimates, would have unraveled as much as a third of the federal tax code.
Ultimately, the court ruled 7-2 to uphold the tax, thereby preserving both the theoretical possibility of a future wealth tax and also much of the federal government’s funding structure. The majority opinion was authored by Brett Kavanaugh. Clarence Thomas, joined by Neil Gorsuch, dissented, and would have thrown out the tax, narrowing congressional taxation power only to “realized income”. That interpretation has not carried the day – not yet.
But the fact that the case came before the supreme court at all reflects a troubling trend in the conservative legal movement, aided by Republican-controlled lower courts: the advancement of cases that promise to promote rightwing policy priorities even when the alleged facts are demonstrably untrue. Because Moore v United States was based on another lie, too: the lie that the Moores have not received income from their investment in the Indian company. They have.
The Moores’ case relies on the notion that the tax they faced is unconstitutional because they were minority shareholders without a major role in the operation of the company, who had not yet profited from their investment. Such are the facts as alleged by their lawyers. But these are not the facts in reality.
In truth, the Moores invested much more money in the company than they initially claimed; Charles Moore, the husband, served as the director of its board for years. He traveled repeatedly to India to oversee it, and was reimbursed for that travel; he lent the company almost a quarter-million dollars and earned back interest. He seems to have worked closely with the founder of the company, a friend of his, to lower his stake in the company, so as to avoid the 2017 tax liability – and, perhaps, so as to make himself a more plausible plaintiff for a conservative movement legal vehicle.
These lies did not persuade the court in this case. But Moore v United States is one of a growing number of high-profile, high-stakes lawsuits brought before the supreme court by the conservative legal movement that have turned out to be based on inaccuracies, falsehoods and outright deceptions as to the underlying facts that are presented by rightwing lawyers in their briefings.
Some of these lie-based cases have had dramatic policy implications. In 303 Creative v Elenis, a case challenging a Colorado civil rights law that required companies to provide equal service to gay people, a website creator alleged that her religious freedom had been violated by the prospect of having to design wedding websites for same-sex couples, and cited a request for such a website she had received from a man named Stewart, who was planning to marry his partner, Mike.
Only Stewart never asked for a wedding website: when the New Republic’s Melissa Gira Grant contacted him, she discovered that the “Stewart” whose supposed request was at the center of the case was a straight man living in San Francisco, who had long been married to a woman; he was never going to marry a man named “Mike” let alone ask a bigoted religious extremist to make him a website in the process.
“Somebody’s using false information in a supreme court filing document,” Stewart told Grant. No matter: the supreme court ruled in favor of the website designer anyway, thus dramatically limiting public accommodation non-discrimination protections in civil rights law.
At times, the blatant disregard for facts on the part of the conservative legal movement – and the willingness to concoct stories of imaginary injuries in order to further cases that have conservative policy implications – has seemed to baffle and frustrate the court’s liberals. In her dissent in Kennedy v Bremerton, the so-called praying coach case, the justice Sonia Sotomayor included multiple photographs of the incidents in question – in which a Washington state high school football coach’s prayers before games were clearly public, coercive and made into a spectacle – to contradict the majority’s bold misrepresentation of the prayers as private and silent.
The fabricated-facts trend has already appeared before the court once so far this term: in the mifepristone case. In a challenge to the FDA’s regulation of access to the abortion drug, a group of anti-choice doctors fabricated far-fetched claims of their own injury, based on scientifically illegitimate studies that have since been retracted, in order to try to take the drug away from abortion seekers. That case didn’t work, either: the court unanimously threw it out on standing grounds.
But the fact that the case got all the way to the supreme court, with district and appellate judges either credulous of the false claims or indifferent to their veracity, says a lot about how far the conservative legal movement is willing to divorce its briefings from reality.
It might be notable that this term, two cases based on fabricated claims were both thrown out in opinions authored by Kavanaugh. For figures so powerful and unaccountable as supreme court justices, psychologizing becomes necessary in imputing their motives, and Kavanaugh, perhaps more than any other justice in the conservative majority, is a deeply insecure man: he is aware of the stench of scandal and malfeasance that has attached to him since his confirmation, aware of the public perception that he is not the intellectual equal of some of his colleagues. His public statements evidence a deep and anxious desire to be liked.
Perhaps this is why, though he doubtless shares the conservative legal movement’s policy agenda, he has been less willing to cooperate with their most transparent lies. He possesses, at least in some small degree, the only force that seems able to check the conservative justices’ impulses: shame.
Moira Donegan is a Guardian US columnist
