Kagan Dissent Demonstrates Strong Counterweight to Scalia

Justice Elena Kagan’s first published dissent -- in Arizona Christian School Tuition Organization v. Winn, a case concerning the ability of citizens to sue the government for violations of the First Amendment’s establishment clause -- demonstrated a strong rhetorical flourish that has caught the attention of many court observers. Arizona had passed a law allowing citizens to receive a tax credit of up to $500 for contributions to school tuition organizations that give scholarships to children attending religious schools. If the contributions had been made directly from the government, it would clearly have run afoul of the First Amendment. But because the funding of religious institutions operated through the mechanism of a tax credit, a 5-4 majority of the Supreme Court, in an opinion by Justice Kennedy, held that affected taxpayers did not have standing to sue Arizona because they couldn't prove that their money was being spent to support religious institutions. The Atlantic’s Garrett Epps wrote that the dissent successfully did what only Justice Scalia has previously accomplished, which is to speak “directly from the bench to ordinary Americans and enlist them on her side of legal disputes.” He quoted the following passage from Kagan’s dissent, which analogized Arizona’s scheme to the bank bailout:

Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

Stanley Fish wrote in the New York Times that Kagan’s argument concerning Arizona’s “end run” around constitutional prohibitions succeeded in “dismantling the majority’s reasoning piece by piece until there is nothing left standing.” Fish discussed another section of the dissent in which Kagan addressed hypothetical tax credits for religious piety:

Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”

“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”

A promising beginning for Justice Kagan.