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South Dakota v. Wayfair, Inc., et al.

Paid petition · Supreme Court of South Dakota, No. 28160-a-GAS · judgment September 13, 2017

Decided · June 21, 2018
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below and counsel who has filed here before, and down for a business respondent.

Question presented

In 1967, this Court held that the dormant commerce clause prohibits a State from requiring catalog retailers to collect sales taxes on sales into the State unless the retailer is "physically present" there. Nat'l Bellas Hess v. Dep't of Rev. of Ill., 386 U.S. 753 (1967). That rule, questionable even then, became an isolated outlier when Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977), held that only a "substantial nexus" was needed for other state taxes affecting interstate commerce. In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), this Court was asked to correct that aberration. But despite a vigorous dissent-and the lack of a similar, "physical presence" rule for any other type of tax, id. at 317-this Court tentatively retained the requirement on stare decisis grounds. The legal and practical developments of the past 25 years strongly recommend revisiting that judgment. Quill has grown only more doctrinally aberrant, and has been roundly criticized by members of this Court, including Justices Kennedy, Thomas, and Gorsuch. But while its legal rationales have imploded with experience, its practical impacts have exploded with the rapid growth of online commerce. Today, States' inability to effectively collect sales tax from internet sellers imposes crushing harm on state treasuries and brick-and-mortar retailers alike. "Given these changes ... , it is unwise to delay any longer a reconsideration of the Court's holding in Quill." Direct Mktg. Ass'n v. Brohl, 135 S. Ct. 1124, 1135 (2015) (Kennedy J., concurring). The question presented is: Should this Court abrogate Quill's sales-tax-only, physical-presence requirement?

Counsel of record

For petitioner
Eric F. Citron
Goldstein & Russell, P.C.

For respondent
George S. Isaacson
Brann & Isaacson

Case

Conference history
Distributed for 2 conferences

Amicus briefs
21 cert-stage · 40 merits
(17 supporting pet./neither, 23 respondent)

Argument & decision

Argued April 17, 2018 — Marty J. Jackley · George S. Isaacson. Audio and transcript

Decided June 21, 2018. Opinion by Kennedy.

Proceedings

  1. Jul 23 2018
    MANDATE ISSUED.
  2. Jul 23 2018
    JUDGMENT ISSUED.
  3. Jun 21 2018
    Judgment VACATED and case REMANDED. Kennedy, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Alito, and Gorsuch, JJ., joined. Thomas, J., and Gorsuch, J., filed concurring opinions. Roberts, C. J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.
  4. Apr 17 2018
    Argued. For petitioner: Marty J. Jackley, South Dakota Attorney General, Pierre, S. D.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: George S. Isaacson, Lewiston, Me.
  5. Apr 13 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Apr 09 2018
    Reply of petitioner South Dakota filed. (Distributed)
  7. Apr 04 2018
    Brief amicus curiae of Colony Brands, Inc. filed. (Distributed)
  8. Apr 04 2018
    Brief amicus curiae of Etsy, Inc. filed. (Distributed)
  9. Apr 04 2018
    Brief amici curiae of eBay Inc., et al. filed. (Distributed)
  10. Apr 04 2018
    Brief amicus curiae of Tax Executives Institute, Inc. filed. (Distributed)
  11. Apr 04 2018
    Brief amici curiae of Washington State Tax Practitioners filed. (Distributed)
  12. Apr 04 2018
    Brief amicus curiae of Online Merchants Guild filed. (Distributed)
  13. Apr 04 2018
    Brief amici curiae of Chris Cox, Former Member of Congress, James S. Gilmore III, Former Governor of Virginia, and NetChoice filed. (Distributed)
  14. Apr 04 2018
    Brief amicus curiae of Cato Institute filed. (Distributed)
  15. Apr 04 2018
    Brief amicus curiae of Computer & Communications Industry Association filed. (Distributed)
  16. Apr 04 2018
    Brief amicus curiae of State of New Hampshire filed. (Distributed)
  17. Apr 04 2018
    Brief amici curiae of National Taxpayers Union Foundation, et al. filed. (Distributed)
  18. Apr 04 2018
    Brief amici curiae of House Judiciary Committee Chairman Bob Goodlatte, et al. filed. (Distributed)
  19. Apr 04 2018
    Brief amicus curiae of Competitive Enterprise Institute filed. (Distributed)
  20. Apr 04 2018
    Brief amicus curiae of United Network Equipment Dealers Association and the Owners' Rights Initiative filed. (Distributed)
  21. Apr 04 2018
    Brief amici curiae of National Auctioneers Association, et al. filed. (Distributed)
  22. Apr 04 2018
    Brief amicus curiae of American Legislative Exchange Council filed. (Distributed)
  23. Apr 04 2018
    Brief amici curiae of United States Senators Ted Cruz, Steve Daines, and Mike Lee filed. (Distributed)
  24. Apr 04 2018
    Brief amicus curiae of State of Montana filed. (Distributed)
  25. Apr 03 2018
    Brief amicus curiae of American Catalog Mailers Association filed. (Distributed)
  26. Apr 03 2018
    Brief amicus curiae of Flipper LLC filed. (Distributed)
  27. Apr 03 2018
    Brief amicus curiae of Americans for Tax Reform filed. (Distributed)
  28. Mar 29 2018
    Brief amicus curiae of American Academy of Attorney - Certified Public Accountants filed. (Distributed)
  29. Mar 28 2018
    Brief of respondents Wayfair, Inc., et al. filed. (Distributed)
  30. Mar 28 2018
    Brief amicus curiae of America's Collectibles Network, Inc. d/b/a Jewelry Television filed. (Distributed)
  31. Mar 19 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  32. Mar 07 2018
    CIRCULATED
  33. Mar 05 2018
    Brief amici curiae of National Congress of American Indians and Indian Tribes in South Dakota in support of neither party filed.
  34. Mar 05 2018
    Brief amicus curiae of United States filed.
  35. Mar 05 2018
    Brief amicus curiae of Tax Foundation in support of neither party filed.
  36. Mar 05 2018
    Brief amici curiae of Retail Litigation Center, Inc., et al. filed.
  37. Mar 05 2018
    Brief amicus curiae of Streamlined Sales Tax Governing Board, Inc. filed.
  38. Mar 05 2018
    Brief amici curiae of Four United States Senators filed. (Distributed)
  39. Mar 05 2018
    Brief amicus curiae of Multistate Tax Commission, et al. filed. (Distributed)
  40. Mar 05 2018
    Brief amicus curiae of David A. Fruchtman supporting neither party filed. (Distributed)
  41. Mar 05 2018
    Brief amici curiae of International Council of Shopping Centers, et al. filed. (Distributed)
  42. Mar 05 2018
    Brief amici curiae of Brill, et al. filed. (Distributed)
  43. Mar 05 2018
    Brief amici curiae of Law Professors and Economists filed. (Distributed)
  44. Mar 05 2018
    Brief amici curiae of Colorado and 40 other states, et al. filed. (Distributed)
  45. Mar 02 2018
    Brief amici curiae of National Governors Association, et al. filed.
  46. Mar 02 2018
    Brief amicus curiae of South Dakota Retailers Association filed.
  47. Mar 01 2018
    Brief amici curiae of National Association of Certified Service Providers and Software & Information Industry Association in Support of Neither Party filed.
  48. Mar 01 2018
    Brief amicus curiae of Professor John S. Baker, Jr. in support of neither party filed.
  49. Mar 01 2018
    Brief amicus curiae of City of Little Rock, Arkansas filed.
  50. Feb 26 2018
    Brief of petitioner South Dakota filed.
  51. Feb 26 2018
    Joint appendix filed. (Statement of costs filed)
  52. Feb 23 2018
    SET FOR ARGUMENT on Tuesday, April 17, 2018.
  53. Feb 05 2018
    Blanket Consent filed by Respondents, Wayfair, Inc., et al., et al..
  54. Jan 31 2018
    Blanket Consent filed by Petitioner, South Dakota
  55. Jan 12 2018
    Petition GRANTED.
  56. Jan 08 2018
    DISTRIBUTED for Conference of 1/12/2018.
  57. Dec 20 2017
    DISTRIBUTED for Conference of 1/5/2018.
  58. Dec 20 2017
    Reply of petitioner South Dakota filed. (Distributed)
  59. Dec 07 2017
    Brief amicus curiae of National Taxpayers Union Foundation filed.
  60. Dec 07 2017
    Brief amicus curiae of NetChoice filed.
  61. Dec 07 2017
    Brief of respondents Wayfair, Inc., et al., et al. in opposition filed.
  62. Dec 07 2017
    Brief amici curiae of Hon. Representative, Robert W. Goodlatte, et al. filed.
  63. Dec 07 2017
    Brief amicus curiae of Chris Cox, Former Member of Congress and Co-Author of the Internet Tax Freedom Act filed.
  64. Dec 07 2017
    Brief amicus curiae of American Catalog Mailers Association filed.
  65. Dec 07 2017
    Brief amicus curiae of Americans for Tax Reform filed.
  66. Nov 02 2017
    Brief amicus curiae of Tax Foundation filed.
  67. Nov 02 2017
    Brief amicus curiae of Streamlined Sales Tax Governing Board, Inc. filed.
  68. Nov 02 2017
    Brief amicus curiae of American Booksellers Association filed.
  69. Nov 02 2017
    Brief amici curiae of National Governors Association, et al. filed.
  70. Nov 02 2017
    Brief amici curiae of International Council of Shopping Centers, et al. filed.
  71. Nov 02 2017
    Brief amici curiae of American Farm Bureau Federation, et al. filed.
  72. Nov 02 2017
    Brief amici curiae of American Lighting Association, et al. filed.
  73. Nov 02 2017
    Brief amicus curiae of Four United States Senators, filed.
  74. Nov 02 2017
    Brief amici curiae of Multistate Tax Commission filed.
  75. Nov 02 2017
    Brief amici curiae of Colorado and 34 other States, et al. filed.
  76. Nov 02 2017
    Brief amici curiae of Law Professors and Economists filed.
  77. Nov 01 2017
    Brief amicus curiae of Retail Litigation Center, Inc. filed.
  78. Nov 01 2017
    Brief amicus curiae of National Retail Federation filed.
  79. Nov 01 2017
    Brief amicus curiae of South Dakota Retailers Association filed.
  80. Oct 24 2017
    Order extending time to file response to petition to and including December 7, 2017.
  81. Oct 23 2017
    Brief amicus curiae of National Association of Wholesaler-Distributors filed.
  82. Oct 19 2017
    Blanket Consent filed by Respondents, Wayfair, Inc., et al., et al.
  83. Oct 16 2017
    Blanket Consent filed by Petitioner, South Dakota
  84. Oct 02 2017
    Petition for a writ of certiorari filed. (Response due November 2, 2017)