At first glance, BNSF Railway Co. v. Loos looks like an utterly unremarkable case on the docket for the Supreme Court’s November sitting. The petitioner is a frequent litigant before the court; the statute at issue (the Railroad Retirement Tax Act) is frequently litigated; and the amount in controversy ($3,765) is piddling by Supreme Court standards. But look again and you’ll see that, notwithstanding the rather drab window dressing, something quite extraordinary is going on.

BNSF, the largest freight railroad network in North America, is arguing that railroads and their employees should pay more in federal payroll taxes. Yes, you are reading that right: BNSF — the company formerly known as Burlington Northern and Santa Fe Railway — is arguing for a higher tax bill. Why would a for-profit corporation do such a thing? The answer appears to have nothing to do with the fact that the chairman and CEO of BNSF’s parent company Berkshire Hathaway, Warren Buffett, believes that Congress should tax the rich more heavily. Rather, BNSF says it’s concerned about the solvency of the Railroad Retirement System, upon which BNSF employees depend for their pensions. Respondent Michael Loos and those filing “friend of the court” briefs on his behalf argue that the railroad’s motivations are not nearly as altruistic. Rather, they claim that a victory for BNSF here — though leading to a higher tax bill in the short term — would actually allow BNSF and other railroads to pay less to injured employees in the long run.

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