Cite as: 509 U. S. 86 (1993)
O'Connor, J., dissenting
In fact, before Davis was announced, conventional wisdom seemed to be directly to the contrary. One would think that, if Davis was "clearly foreshadowed," some taxpayer might have made the intergovernmental immunity argument before. No one had. Twenty-three States had taxation schemes just like the one at issue in Davis; and some of those schemes were established as much as half a century before Davis was decided. See Harper v. Virginia Dept. of Taxation, 241 Va. 232, 237, 401 S. E. 2d 868, 871 (1991). Yet not a single taxpayer ever challenged one of those schemes on intergovernmental immunity grounds until Davis challenged Michigan's in 1984. If Justice Holmes is correct that "[t]he prophecies of what the courts will do in fact, and nothing more pretentious" are "law," O. Holmes, The Path of the Law, in Collected Legal Papers 167, 173 (1920), then surely Davis announced new law; the universal "prophecy" before Davis seemed to be that such taxation schemes were valid.
An examination of the decision in Davis and its predecessors reveals that Davis was anything but clearly foreshad-owed. Of course, it was well established long before Davis that the nondiscrimination principle of 4 U. S. C. § 111 and the doctrine of intergovernmental immunity prohibit a State from imposing a discriminatory tax on the United States or
sult in [Davis itself]"; "how the intergovernmental tax immunity doctrine and 4 U. S. C. § 111 applied to [plans like the one at issue in Davis] was anything but clearly established prior to Davis"); Harper v. Virginia Dept. of Taxation, 241 Va. 232, 238, 401 S. E. 2d 868, 872 (1991) ("[T]he Davis decision established a new rule of law by deciding an issue of first impression whose resolution was not clearly foreshadowed"); Swanson v. State, 329 N. C. 576, 583, 407 S. E. 2d 791, 794 (1991) ("[T]he decision of Davis was not clearly foreshadowed"); Bass v. State, 302 S. C. 250, 256, 395 S. E. 2d 171, 174 (1990) (Davis "established a new principle of law"); Bohn v. Waddell, 164 Ariz. 74, 92, 790 P. 2d 772, 790 (1990) (Davis "established a new principle of law"); Note, Rejection of the "Similarly Situated Taxpayer" Rationale: Davis v. Michigan Department of Treasury, 43 Tax Lawyer 431, 441 (1990) ("The majority in Davis rejected a long-standing doctrine").
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