Justice Anthony Kennedy’s majority opinion in the online-sales-tax case South Dakota v. Wayfair was his final — and most significant — decision involving the dormant commerce clause doctrine, which prohibits state and local governments from passing laws that discriminate against or unduly burden interstate commerce unless Congress consents. Wayfair also was a sharp break from Kennedy’s dormant commerce clause jurisprudence over the preceding three decades. Before Wayfair, Kennedy was one of the most ardent defenders of the much-maligned dormant commerce clause and one of the most reliable votes in favor of litigants who challenged state and local laws on the ground that they violated that doctrine.
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