She may be the Supreme Court's baby at 50, but her first dissent already demonstrates a quotably distinctive voice
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.
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.
Kagan's dissent generally suggests that--at a stage of her career when many justices are still struggling to sharpen their quill pens--she is ready to step into the role of the late-career John Paul Stevens, a master of the powerful, quotable dissent. (Who will ever forget the last words of his dissent in Citizens United: "While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics"?) Kagan adopts Stevens' tactic of matching originalist claims with her own originalism; she mines the works of James Madison to suggest that the designer of our system of religious freedom would not be fooled by the tax-credit dodge.
But Kagan is also, irrepressibly, herself. "Suppose a State desires to reward Jews--by, say, $500 per year--for their religious devotion," she writes. "Should the nature of taxpayers' concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend?" There are echoes here of Kagan's famous quip at her confirmation hearings when Senator Lindsey Graham asked her where she had been during the Christmas Day attack in which a Nigerian passenger apparently attempted to bring down a Northwest Airlines flight by setting off explosives strapped to his body. "Like all Jews, I was probably in a Chinese restaurant," she responded, letting all the tension out of the situation--and incidentally reaffirming her pride in her Jewishness, which some Bible Belt senators had obliquely tried to use against her by discussing her "liberal upbringing."
I confess I think Kagan has the better of the exchange in Winn. As a Madisonian, I can't forget Madison's veto message of 1811, when he sent back to Congress a bill that would have funneled tax money to a church in the District of Columbia to operate a school: the funding, he wrote, "would be a precedent for giving to religious societies as such, a legal agency in carrying into effect a public and civil duty."
The Winn majority thinks harnessing religion for "public and civil duty" is a great idea. "By helping students obtain scholarships to private schools, both religious and secular, the STO program might relieve the burden placed on Arizona's public schools," Kennedy wrote. "The result could be an immediate and permanent cost savings for the State." Who could be against that?
Kagan undercut the "public benefit" argument by noting (indirectly) her own membership in one religious minority that might feel excluded from majority-religious schools fattened on tax-credit funds. And with her bailout metaphor, she spoke directly to the public. By invoking the most hated political event of the past four years, Kagan suggested that the majority is pulling a fast one with public funds, like feckless bankers looting the treasury after their own greed had all but ruined the country. Pretend all you want, she seems to be saying, you're not fooling anybody. It was strong language; that it was delivered with a smile makes it no less a body blow.
Kagan may be writing mostly dissents for a while. But dissents, as the career of William Rehnquist shows, can turn into majority opinions. Kagan will turn 51 later this month, making her a baby among her colleagues. It is a long road that has no turning, and if the ideological split on this Court ever reverses itself, a new majority may find the path blazed--stylishly so--by dissents like the one she published this week.