The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_0194/91_0194.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-194
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QUILL CORPORATION, PETITIONER v. NORTH
DAKOTA by and through its TAX COMMIS-
SIONER, HEIDI HEITKAMP
on writ of certiorari to the supreme court of
north dakota
[May 26, 1992]

  Justice Scalia, with whom Justice Kennedy and
Justice Thomas join, concurring in part and concurring in
the judgment.
  National Bellas Hess, Inc. v. Department of Revenue of
Ill., 386 U. S. 753 (1967), held that the Due Process and
Commerce Clauses of the Constitution prohibit a State from
imposing the duty of use-tax collection and payment upon
a seller whose only connection with the State is through
common carrier or the United States mail.  I agree with the
Court that the Due Process Clause holding of Bellas Hess
should be overruled.  Even before Bellas Hess, we had held,
correctly I think, that state regulatory jurisdiction could be
asserted on the basis of contacts with the State through the
United States mail.  See Travelers Health Assn. v. Virginia
ex rel. State Corp. Comm'n, 339 U. S. 643, 646-650 (1950)
(Blue Sky laws).  It is difficult to discern any principled
basis for distinguishing between jurisdiction to regulate and
jurisdiction to tax.  As an original matter, it might have
been possible to distinguish between jurisdiction to tax and
jurisdiction to compel collection of taxes as agent for the
State, but we have rejected that.  National Geographic Soc.
v. California Bd. of Equalization, 430 U. S. 551, 558 (1977);
Scripto, Inc. v. Carson, 362 U. S. 207, 211 (1960).  I agree
with the Court, moreover, that abandonment of Bellas
Hess's due process holding is compelled by reasoning -[c]om-
parable- to that contained in our post-1967 cases dealing
with state jurisdiction to adjudicate.  Ante, at 8.  I do not
understand this to mean that the due process standards for
adjudicative jurisdiction and those for legislative (or
prescriptive) jurisdiction are necessarily identical; and on
that basis I join Parts I, II, and III of the Court's opinion.
Compare Asahi Metal Industry Co. v. Superior Court, 480
U. S. 102 (1987) with American Oil Co. v. Neill, 380 U. S.
451 (1965).
  I also agree that the Commerce Clause holding of Bellas
Hess should not be overruled.  Unlike the Court, however,
I would not revisit the merits of that holding, but would
adhere to it on the basis of stare decisis.  American Truck-
ing Assns., Inc. v. Smith, 496 U. S. 167, 204 (1990) (Scalia,
J., concurring in judgment).  Congress has the final say
over regulation of interstate commerce, and it can change
the rule of Bellas Hess by simply saying so.  We have long
recognized that the doctrine of stare decisis has -special
force- where -Congress remains free to alter what we have
done.-  Patterson v. McLean Credit Union, 491 U. S. 164,
172-173 (1989).  See also Hilton v. South Carolina Pub.
Railways Comm'n, 502 U. S. ___, ___ (1991) (slip op., at 4);
Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977).
Moreover, the demands of the doctrine are -at their acme
. . . where reliance interests are involved,- Payne v. Tennes-
see, 501 U. S. ___, ___ (1991) (slip op., at 18).  As the Court
notes, -the Bellas Hess rule has engendered substantial
reliance and has become part of the basic framework of a
sizeable industry,- ante, at 17.
  I do not share Justice White's view that we may dis-
regard these reliance interests because it has become
unreasonable to rely upon Bellas Hess, post, at 11-12.
Even assuming for the sake of argument (I do not consider
the point) that later decisions in related areas are inconsis-
tent with the principles upon which Bellas Hess rested, we
have never acknowledged that, but have instead carefully
distinguished the case on its facts.  See, e.g., D. H. Holmes
Co. v. McNamara, 486 U. S. 24, 33 (1988); National
Geographic Soc., supra, at 559.  It seems to me important
that we retain our ability-and, what comes to the same
thing, that we maintain public confidence in our abili-
ty-sometimes to adopt new principles for the resolution of
new issues without abandoning clear holdings of the past
that those principles contradict.  We seemed to be doing
that in this area.  Having affirmatively suggested that the
-physical presence- rule could be reconciled with our new
jurisprudence, we ought not visit economic hardship upon
those who took us at our word.  We have recently told lower
courts that -[i]f a precedent of this Court has direct applica-
tion in a case, yet appears to rest on reasons rejected in
some other line of decisions, [they] should follow the case
which directly controls, leaving to this Court the preroga-
tive of overruling its own decisions.-  Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U. S. 477, 484
(1989).  It is strangely incompatible with this to demand
that private parties anticipate our overrulings.  It is my
view, in short, that reliance upon a square, unabandoned
holding of the Supreme Court is always justifiable reliance
(though reliance alone may not always carry the day).
Finally, the -physical presence- rule established in Bellas
Hess is not -unworkable,- Patterson, supra, at 173; to the
contrary, whatever else may be the substantive pros and
cons of the rule, the -bright-line- regime that it establishes,
see ante, at 15-16, is unqualifiedly in its favor.  Justice
White's concern that reaffirmance of Bellas Hess will lead
to a flurry of litigation over the meaning of -physical
presence,- see post, at 10, seems to me contradicted by 25
years of experience under the decision.
  For these reasons, I concur in the judgment of the Court
and join Parts I, II, and III of its opinion.