U.S. Supreme Court

Kagan Bested Sotomayor in First-Dissent Sweepstakes, Analyst Says; Does Scalia Have a Rival?


Justice Antonin Scalia, known for his pointed and quotable dissents, may have some competition.

Justice Elena Kagan’s first dissent shows she may be able to rival Scalia, according to legal analyst Andrew Cohen, writing for the Atlantic. He cautions that it may be too early to make predictions, but he does think Kagan’s first dissent shows flair.

“She was blunt, she was pointed, and she brought three of her senior colleagues along with her in full,” Cohen writes.

Kagan dissented on Monday when the U.S. Supreme Court held taxpayers don’t have standing to challenge an Arizona tax credit program that helps fund scholarships at religious schools. The majority opinion by Justice Anthony M. Kennedy saw a difference between direct governmental expenditures, which can be challenged by taxpayers, and tax credits, which cannot. In the latter instance, he wrote, “any financial injury remains speculative.”

Kagan disagreed. “This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent,” she wrote. “Cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

“Still worse, the court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.”

Cohen contrasts Kagan’s first dissent with that of Justice Sonia Sotomayor. “It was solid but had little of the rhetorical flair or bite that Justice Kagan offered up,” Cohen says.

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