Kagan’s First Dissent

 Anthony Kammer

On Monday of this week, Justice Elena Kagan handed down her first dissent since joining the Court. It’s persuasive (pdf). A number of commenters arealready speculating that there might, at last, be a liberal voice on the Court able to trade rhetorical punches with the stylistically adept Antonin Scalia. While it might be a little wishful or premature to start drawing such conclusions, the dissent shows that Kagan has a definitive voice that can be both humorous and persuasive. This isn’t much of a surprise based on her previous statements.

The dissent came in Arizona Christian School Tuition Organization v. Winn, which involved an Establishment Clause challenge to an Arizona tax program that allowed taxpayers to designate a portion of their tax dollars for private schools, including qualifying religious schools. The claim was that this indirectly accomplished what the state is prohibited from doing outright—using tax dollars to support religious organizations. But the conservative majority on the Court never reached this issue because it dismissed the suit for lack of standing.

While the general rule is that taxpayers lack standing to challenge government spending decisions, there has been an exception for the Establishment Clause since the 1968 decision in Flast v. Cohen. This week, the Court found a way of distinguishing the Flast exception by relying on a newly recognized, technical distinction between tax appropriations and tax expenditures. Justice Kagan thought the distinction a false one:

“This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose stateaid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.”

“Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.”

Justice Kagan goes further and suggests that the majority’s reliance on this false distinction is an insult to intelligence of Americans:

“Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. 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.”

In these passages, Kagan has not only exposed the disingenuousness of the majority’s decision, but also linked the decision to one of the most salient political issues of our time. And given the current composition of the Court, it’s doubtful this is the last–or the most impassioned–dissent we’re likely to see from her.

Photo credit, Doc Searls Wikimedia Commons.


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