Judges as Taxmen

If you're searching for a one-word description of the current Supreme Court, predictable probably isn't on your list. Last summer, three Court decisions overturned affirmative action programs. And this April's ruling on Kansas City's segregated public schools sent everyone back to the drawing board.

The Missouri v. Jenkins case focused on a court-ordered desegregation program. Federal District Judge Russell Clark signed onto a magnet school plan the Kansas City school district drew up to lure white students into predominantly black schools. To upgrade facilities and implement new curricula, the city's taxpayers would have had to cough up as much as $700 million; they declined.

Undaunted, Judge Clark ordered the state of Missouri to pay 75 percent of the magnet program's costs while the city picked up the rest. But the school district soon ran out of money, and legal impediments kept it from raising more: The Missouri constitution specifies that voters must approve property tax increases. Kansas City voters refused to pay more than $2.05 per $100 valuation. So Judge Clark decided to set the rate—at $4.00.

The Supreme Court unanimously agreed with a lower court that Clark had no authority to set tax rates. But by a 5-to-4 margin, the justices said a federal court could force the school district to collect enough taxes to pay for the desegregation program.

Writing for the majority, Justice Byron White said, "a court order directing a local government body to levy its own taxes is plainly…within the power of a federal court." White further asserted that a local government can supersede a state tax limit when that limit violates constitutional protections (in this case, the Fourteenth Amendment's Equal Protection Clause).

In a stinging dissent, Justice Anthony Kennedy said: Wait a minute. Remember separation of powers? Remember "taxation without representation"? Liberally citing past Court decisions, the Federalist Papers, and the 1764 Virginia Petitions protesting the Stamp Act, Kennedy reminded his colleagues that Article III, which spells out the limits of judicial power, "nowhere includes the word 'tax' or anything that resembles it." And more than 200 years of court rulings "leave no doubt," he wrote, "that taxation is not a judicial function."

Justice Kennedy belittled the majority's position by listing more than a dozen superfluous amenities required by the magnet plan—among them, a 25-acre farm, a 2,000-square-foot planetarium, and a model United Nations wired for language translation. Kennedy chided the lower courts for making no attempt to find other ways to desegregate the city's schools.

The majority picked a rotten example to justify a fundamental shift in legal doctrine. Landmark desegregation decisions such as Milliken v. Bradley (1974) gave federal courts broad enforcement powers when integrating public schools. But, as Kennedy noted, these cases still prohibited parties from "join[ing] forces apparently for the purpose of extracting funds from the state treasury." What else could the school district and the parents bringing suit have had in mind?

Commentators have already crafted potential horror stories emerging from this decision: federal judges raising taxes to increase prison space, upgrade hospitals, improve museums; local governments committing huge sums to public works projects, then having judges mandate the taxes to pay for them. Activists on the federal bench may be licking their chops as they prepare to undo society's ills.

But this dreadful decision may conceal two silver linings. The five justices in this majority are all more than 80 years old; President Bush's first appointee to the Court would probably vote to overturn this ruling. Also, the flagging debate over the limits of judicial authority may be reinvigorated because of this blatant power grab. A decision that seems to supercharge the authority of unelected officials may eventually pull the plug on that power.