Oops! The Supreme Court Heard Another Case Built on Shameless Lies.
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The Supreme Court heard arguments Tuesday in Moore v. United States, an effort to preemptively kill a future wealth tax before it can even be enacted. As in several recent high-profile cases, the facts are hotly contested; indeed, the conservative lawyers who represent the plaintiffs appear to have misled the justices about key details that would undermine their legal theory. On this week’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the right’s emerging strategy of manufacturing cases on the basis of made-up claims so the courts will have an opportunity to shift the law rightward. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: You and I have done an immense amount of aggregated bellyaching about the fake facts of 303 Creative v. Elenis and the Coach Kennedy case. Moore is of a piece with that theme, where it’s not just that you find an imperfect plaintiff, then craft a case around him; it’s that you find a plaintiff who in no way actually represents the claims you’re making, then you just lie about it. What the Moores put in their briefing, what they said to the court—this is a whole new level of fabrication. The Moores’ case is predicated on many, many things that are not true.
Mark Joseph Stern: Right. So, the story here is that, as part of the Trump tax-cut bill, the government imposed this one-time tax on individuals who own more than 10 percent of shares in a foreign corporation. Conservative lawyers saw this new tax and said, “Hey, we should use that to try to strike down a future wealth tax before it even comes into existence.” And the lead lawyers, Andrew Grossman and David Rivkin, use [Charles and Kathleen Moore] as their plaintiffs. The Moores are a married couple who own a stake in an Indian business that manufactures and distributes farm equipment. Grossman and Rivkin claimed that the Moores had never received any distribution or dividends or other payments from this company. They said they’re minority shareholders who just wanted to support this company and that it’s unconstitutional to tax their shares since they haven’t been cashed out for personal profit yet.
That’s a lie. Charles Moore, the lead plaintiff, doesn’t mention this in the briefing, but he served as director on the board of this company for five years. He told the courts he only invested $40,000 in this company, but he actually invested $150,000. He lent the company $245,000, which he was paid back with interest. He repeatedly traveled to India to oversee the company’s operations and received $14,000 in travel reimbursements. And when this new law was coming into effect, he actually worked very closely with the company’s founder to try to lower his stake so that he wouldn’t face the tax.
All of that is either lied about or ignored in the briefing because it would make the entire theory of the case fall apart. The Moores are saying, “Hey, we don’t run this company—there’s no way the value of these shares can be attributed to us.” But it turns out they were in control of this company from the beginning. They played a major role in all profit that it made. And once you see that, you see why it is clearly constitutional for them to be taxed for however much these shares grew. They held meaningful control over the corporation, so under long-standing law, the increased value of the shares can be attributed to them.
One of the things I thought about a lot when I was reading the briefs is that there’s this asymmetry here. Investigative reporters can dig up the real facts of a case and expose the lies. But there are all of these norms and conventions around how we litigate cases and how the court deals with cases. And the idea that one of the justices would, during oral arguments, say, “Hmm, Mr. Grossman, everything you’re saying is a lie”—that would never happen. So, there’s a strange way in which we have to deal with the facts as they are briefed, not as journalism reveals them to be true. The real facts don’t penetrate the chamber.
I think this is part of the civility trap. The entire proceeding of oral argument is so formal and designed to seem like you’re standing before a council of wizards and you’re all sort of tapping into some kind of mystical, ancient energy that has to be respected. That precludes a lot of plain-spoken truth-telling that needs to happen at the court. And we’re not seeing that from lawyers, in part because it would be so daring and unfashionable. Even if you know that the other side is lying, you are not willing to go up there and say, before the justices, the black-robed oracles: “Hey, by the way, everything you just heard was perjury, and you should probably send this guy to some tiny jail in the Supreme Court basement because every word out of his mouth has been a lie.”
That just doesn’t happen. It’s never going to happen. And that encourages the behavior we saw from Grossman, Rivkin, and the Moores. They know they’re going to get away with it. Even if they lose this case—and I think they probably will—they’ll still have gotten away with a whole lot of twaddle that should have landed them in hot water.
