When Elena Kagan was nominated by President Obama to be an associate justice of the Supreme Court, some observers speculated that she might be the long-sought liberal counterweight to Antonin Scalia, noted for his intelligence, his wit and his prose style. Of course it’s too early to tell, but Kagan’s dissent (her first) in Arizona Christian School Tuition Organization v. Winn would seem to give those distressed by the Court’s current direction some hope. (Scalia honed his rhetorical skills as a dissenter earlier in his career.)
The opinion itself is a predictable extension of the conservative majority’s practice of money laundering when it comes to Establishment Clause cases that involve financial aid to sectarian schools. At issue was an Arizona program that provides tax credits up to $500 for contributions to school tuition organizations, organizations that then turn around and give the funds to private schools, “many of which,” Justice Anthony Kennedy (writing for the majority) concedes, “are religious.” That the intention of the program is to funnel funds to religious schools doesn’t seem to be in dispute. In her dissent Kagan notes that “One STO advertises that ‘[w]ith Arizona’s scholarship tax credit, you can send children to our community’s [religious] day schools and it won’t cost you a dime.’”
Well, it depends on who “you” are. If you are an Arizona citizen whose children go to public schools funded by your taxes, you might object to the additional tax (minute for any individual, but in the many millions in the aggregate) you pay because your religious neighbors are given a break.
Of course, one can argue (as the majority does) that public funds are not being used to fund religious schools because the funds are neither given directly nor extracted from the pocket of any particular tax-payer. But as my associate dean for finance never tired of reminding me when I wanted to do something tricky with money, “a dollar is a dollar,” a proverb rehearsed and glossed in a law review essay Kagan cites: “A dollar is a dollar — both for the person who receives it and the government that pays it, whether the dollar comes with a tax credit label or a direct expenditure label.” Kagan draws the obvious common sense conclusion: “these financing mechanisms result in the same bottom line.”
But common-sense thinking about expenditures in connection with the supposed separation of church and state has long since been abandoned by the Court. In Mitchell v. Helms (2000), Justice Clarence Thomas explains that if state funds reach religious schools by the private choice of organizations or individuals, the government can not be said to have “provided any ‘support of religion.’” And in Zelman v. Harris (2002), Chief Justice William Rehnquist launders a voucher program by deploying the same reasoning: “where a government aid program … provides aid directly to a broad class of citizens who in turn direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Justice Kennedy just gets in line when he declares in the present case that “while the state at the outset affords the opportunity to create and contribute to a STO, the tax credit system is implemented by private action and with no state intervention.” (Look ma, no hands!)
Given arguments like these, we might wonder what is left of the Establishment Clause, at least in this area, and the answer is not much. Its force is further eroded when the majority declares early on that whatever the merits of the respective arguments, the respondents protesting the STO program have no standing because under Article III of the Constitution “a plaintiff who seeks to invoke the federal judicial power must assert more than just the ‘generalized interest of all citizens in constitutional governance’”; must assert, that is, an injury that is “personal and individual.”
It would seem that the difficulty had been removed by Flast v. Cohen (1968), which holds that “a taxpayer will have standing consistent with Article III … when he alleges that congressional action under the taxing and spending clause is in derogation of the Establishment Clause.” But this apparently clear exception is denied by the majority, which insists that for Flast to apply, the moneys in question would have to have been “extracted from a citizen and handed to a religious institution in violation of the citizen’s conscience,” whereas in Arizona some taxpayers voluntarily assign $500 to an STO and other taxpayers are asked to do nothing.
An exception to Flast reinstates the direct personal impact requirement the Flast exception supposedly relaxed. Flast is undone and so is the Establishment Clause; for, as Kagan observes, under the majority’s analysis “no taxpayer would have standing to allege a violation of the Establishment Clause.”
Because the decision was predictable, there wasn’t much Kagan could do: if those on the other side are committed to doing an “end run” (her phrase) around the Constitution so that state money gets to religious schools, they will easily find the means to do so, whether the means is the doctrine of “private choice” or the requirement of very specific extraction (the state must be caught with its hands in your own particular pocket) or some other alchemical device.
What Kagan can do, however, is display a style of argument that marks her as someone to reckon with, both inside and outside the Court. And that she does, not by attempting to match Scalia’s sentence-by-sentence pyrotechnics (see for example his scintillating and prophetic dissent in Lawrence v. Texas) but by dismantling the majority’s reasoning piece by piece until there is nothing left standing.
If there is a rhetorical gesture that marks her performance (as biting scorn marks Scalia’s), it is “Oh yeah?” — as in, I see you assert X, but here is evidence, often from your own mouths, that X is a bad or inapposite or silly argument. Her weapon of choice is not the hit-and-run example (that is Scalia’s forte), but the extended example that open up and fills the landscape. To illustrate her point that the majority’s distinction between direct and indirect funding “is one in search of a difference,” she asks us to “imagine that the Federal Government decides that it should pay hundreds of millions to insolvent banks” (imagine that!) but finds itself resisted by taxpayers who don’t want “their hard-earned money to reward irresponsible behavior.”
Suppose further that the government thought to disarm the resistance by allowing banks “to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury.” Would the proposal, she asks, “calm the furor or would most taxpayers respond that a subsidy is a subsidy (or a bailout is a bailout ), whether accomplished by one means or the other?” The question answers itself, but she answers it — “Surely the latter” — and she adds “we would think the less of our countrymen if they failed to see through this cynical proposal.” She doesn’t accuse her fellow justices of endorsing a cynical proposal; she just leaves it there.
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.”
Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.
