Justice Elena Kagan Speaks to America's Main Street

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She may be the Supreme Court's baby at 50, but her first dissent already demonstrates a quotably distinctive voice 

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Elena Kagan, in her first published dissent, made her views known on church-state issues. She is a separationist. No surprise. She is also--as Andrew Cohen notes--an elegant stylist. One suspected as much. Finally--and perhaps most importantly--she seems to be positioning herself to do something that only Justice Antonin Scalia has been able to do: speak directly from the bench to ordinary Americans and enlist them on her side of legal disputes.

Here's what she wrote:

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.

The issue in Arizona Christian School Tuition Organization v. Winn is not, in fact, the Bank Bailout of 2008 (PDF). It is a scheme crafted in Arizona to allow taxpayers to steer money from their tax bills to private organizations that provide educational benefits on a discriminatory basis. Under the Arizona plan, citizens figure up their state tax bill. Then they make a donation of up to $500 to a "school tuition organization," or STO, which provides scholarships for elementary and secondary school students to attend private schools. That donation reduces their tax bill dollar for dollar. The recipient schools may not discriminate by "race, color, handicap, familial status, or national origin." Note what's missing: a school receiving the scholarship funds may discriminate on the basis of religion.

Plaintiffs in Arizona sued, arguing that this diversion of tax funds to religious schools violates the Establishment Clause of the First Amendment. The issue before the Court formally wasn't whether they were right--it was "standing to sue." The ordinary rule is that taxpayers can't sue government just because they believe that tax monies are being spent unconstitutionally. The Warren Court in 1968 carved an exception to the rule: Plaintiffs alleging expenditures in violation of the Establishment Clause may sue, because the clause was the product of concern precisely about public funds going to religious bodies.

At a stage of her career when many justices still struggle to sharpen their quill pens, Kagan is ready to step into the role of the late-career John Paul Stevens, a master of the powerful, quotable dissent.

That case, Flast v. Cohen, has been the subject of much criticism ever since, precisely because it is an exception to the general rule. In Winn, the Court could have overruled Flast but it didn't. Instead, in an opinion by Justice Kennedy, the conservative minority announced that while direct tax payments to STOs would create standing to sue, the transfer of the same amount of money in tax credits does not.

Kagan, writing for the four dissenting justices, asked why it is different to give tax credit funds to religious schools than it is to give tax funds to religious schools. The credit funds decrease the amount of money in the state treasury just as surely as a regular expenditure would; the benefit to religion--and the potential insult to Establishment values--is precisely the same.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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