566
Opinion of the Court
Pink, however, concerned a case, United States v. Moscow Fire Ins. Co., 309 U. S. 624 (1940), in which this Court had heard oral argument and apparently considered the merits prior to concluding that affirmance by an equally divided Court was appropriate. The law of the case doctrine presumes a hearing on the merits. See, e. g., Quern v. Jordan, 440 U. S. 332, 347, n. 18 (1979). This case does not involve a previous consideration of the merits. Indeed, when this case previously was before us, due to absence of a quorum, we could not consider either the merits or whether to consider those merits through grant of a writ of certiorari. This fact, along with the obvious difficulty of finding other equivalent substitute forums, convinces us that Pink's statement does not control the outcome here, that the "law of the case" doctrine does not prevent our considering both issues presented, and that we should now proceed to decide them.
III
The Court of Appeals upheld the judges' claim of tax immunity upon the authority of Evans v. Gore, 253 U. S. 245 (1920). That case arose in 1919 when Judge Walter Evans challenged Congress' authority to include sitting federal judges within the scope of a federal income tax law that the Sixteenth Amendment had authorized a few years earlier. See Revenue Act of 1918, § 213, 40 Stat. 1065 (defining "gross income" to include judicial salaries). In Evans itself, the Court held that the Compensation Clause barred application of the tax to Evans, who had been appointed a judge before Congress enacted the tax. 253 U. S., at 264. A few years later, the Court extended Evans, making clear that its rationale covered not only judges appointed before Congress enacted a tax but also judges whose appointments took place after the tax had become law. See Miles v. Graham, 268 U. S. 501, 509 (1925).
Fourteen years after deciding Miles, this Court overruled Miles. O'Malley v. Woodrough, 307 U. S. 277 (1939). But,
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