{"id":758,"date":"2011-04-07T15:40:06","date_gmt":"2011-04-07T19:40:06","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=758"},"modified":"2015-10-02T15:58:05","modified_gmt":"2015-10-02T15:58:05","slug":"kagans-first-dissent","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/04\/07\/kagans-first-dissent\/","title":{"rendered":"Kagan\u2019s First Dissent"},"content":{"rendered":"

\u00a0<\/span>Anthony Kammer<\/em><\/p>\n

On Monday of this week, Justice Elena Kagan handed down her first dissent since joining the Court. It\u2019s persuasive (pdf<\/a>). A number of commenters\u00a0are<\/a>already<\/a>\u00a0speculating<\/a>\u00a0that 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\u00a0premature<\/a>\u00a0to start drawing such conclusions, the dissent shows that Kagan has a definitive voice that can be both humorous and persuasive. This isn\u2019t much of a surprise based on her\u00a0previous statements<\/a>.<\/p>\n

The dissent came in\u00a0Arizona Christian School Tuition Organization v. Winn<\/em>, 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\u2014using 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\u00a0standing<\/a>.<\/p>\n

<\/p>\n

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\u00a0Flast v. Cohen<\/a><\/em>. This week, the Court found a way of distinguishing the\u00a0Flast\u00a0<\/em>exception by relying on a newly recognized, technical distinction between tax appropriations and tax expenditures. Justice Kagan thought the distinction a false one:<\/p>\n

\u201cThis 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\u00a0tax breaks are means of accomplishing the same government objective\u2014to provide financial support to select\u00a0individuals or organizations. Taxpayers who oppose stateaid of religion have equal reason to protest whether that\u00a0aid flows from the one form of subsidy or the other. Either\u00a0way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge\u00a0the subsidy.\u201d<\/p>\n

\u201cStill worse, the Court\u2019s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government\u2019s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the\u00a0other.\u201d<\/p>\n

Justice Kagan goes further and suggests that the majority\u2019s reliance on this false distinction is an insult to intelligence of Americans:<\/p>\n

\u201cHere, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from\u00a0Flast<\/em>\u00a0and, indeed, from\u00a0religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent\u00a0banks 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\u00a0behavior. 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\u00a0the tax bill they would otherwise have to pay to the U. S.\u00a0Treasury. Would this proposal calm the furor? Or would\u00a0most taxpayers respond by saying that a subsidy is a\u00a0subsidy (or a bailout is a bailout), whether accomplished\u00a0by the one means or by the other? Surely the latter; indeed\u00a0we would think the less of our countrymen if they failed to see through this cynical proposal.\u201d<\/p>\n

In these passages, Kagan has not only exposed the disingenuousness of the majority\u2019s 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\u2019s doubtful this is the last\u2013or the most impassioned\u2013dissent we\u2019re likely to see from her.<\/p>\n

Photo credit, Doc Searls\u00a0Wikimedia Commons<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0Anthony Kammer On Monday of this week, Justice Elena Kagan handed down her first dissent since joining the Court. It\u2019s […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-758","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-ce","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/758","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=758"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/758\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=758"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=758"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=758"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}