The most “dangerous” Justice?
“Kagan May Be Dangerous,” wrote the Wall Street Journal’s “Best of the Web” this week. More politics as usual? Not at all. The popular right-leaning blog meant “dangerous” as a grudging compliment to our new left-leaning Justice, who just issued her first dissent, attacking the majority for failing to find standing in a major Establishment Clause case.
“Kagan’s arguments are clever and lively,” admits the blog, “more so than anything we’ve read from the [C]ourt’s ‘liberal’ wing in a long time.” She could become an “intellectual force,” the blog concedes, hoping that she’ll stick to dissents.
So what is it about Kagan’s writing that’s scaring the Legal Right? The persuasive power of her examples and analogies.
Let’s look at a few of her best ones, which may inspire you to create your own:
In this first one, Kagan conjures up a taxpayer-standing scenario on a timely but unrelated issue: federal bailouts of failing banks. I’ve also bolded both her professorial use of the second person and her effective pair of questions:
Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: 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.
This second hypothetical, where the government rewards one religious group over another, was sure to grab attention as well. I’ve also bolded the unusual use of “Now, really” to signal exasperation:
Consider some further examples of the point, but this time concerning state funding of religion. Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion. 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? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong. The effect of each form of subsidy is the same, on the public fisc and on those who contribute to it. Regardless of which mechanism the State uses, taxpayers have an identical stake in ensuring that the State’s exercise of its taxing and spending power complies with the Constitution.
And this third example checks one of the majority’s abstract findings by dreaming up a concrete new tax-return checkbox. I’ve bolded the wrap-up line that “strikes for the jugular,” as Oliver Wendell Holmes might say:
Let us indulge the Court’s fiction that a taxpayer’s “.000000000001 penny” is somehow involved in an ordinary appropriation of public funds for religious activity (thus supposedly distinguishing it from a tax expenditure). Still, consider the following example: Imagine the Internal Revenue Service places a checkbox on tax returns asking filers if they object to the government using their taxes to aid religion. If the government keeps “yes” money separate from “no” money and subsidizes religious activities only from the nonobjectors’ account, the majority’s analysis suggests that no taxpayer would have standing to allege a violation of the Establishment Clause. The funds used, after all, would not have been “extracted from a citizen and handed to a religious institution in violation of the citizen’s conscience.” But this Court has never indicated that States may insulate subsidies to religious organizations from legal challenge by eliciting the consent of some taxpayers. And the Court has of course been right not to take this approach. Taxpayers incur the same harm, and should have the same ability to bring suit, whether the government stores tax funds in one bank account or two. None of the principles underlying the Establishment Clause suggests otherwise.
And nothing about this dissent suggests that Kagan’s going away any time soon. Justice Scalia, you may have met your match.