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U.S. Supreme Court

Kagan Hits Acting SG’s ‘Silly and Fictional’ Interpretation of Taxpayer Standing

Posted Nov 4, 2010 10:06 AM CDT
By Debra Cassens Weiss

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Justice Elena Kagan criticized the man who has temporarily replaced her as solicitor general in oral arguments on Wednesday in a constitutional challenge to an Arizona tax credit program that helps pay tuition for students at religious schools.

One issue in the case is whether the program violates the establishment clause, according to the Washington Post, USA Today and SCOTUSblog. Individual taxpayers can participate by giving up to $500 in money owed for state taxes to organizations that in turn fund private school scholarships that help pay for religious schools. The amount sent to the scholarship groups does not have to be paid in taxes.

A second issue is whether taxpayers challenging the program have standing to sue. Acting Solicitor General Neal Katyal argued against standing, seeking a rule that would limit the reach of a 1968 case, Flast v. Cohen.

Katyal said the decision applied only when money is taken out of taxpayers’ pockets and used to fund religion against their conscience, according to the USA Today account. In the case before the Supreme Court, objecting taxpayers didn’t participate in the program and “not a cent, not a fraction of a cent” of their money was sent to religious schools.

Kagan called Katyal’s interpretation of the Supreme Court’s decisions “silly and fictional,” the Washington Post reports. She said that if Katyal were right, the Supreme Court had been without authority to decide five separate cases involving church-state claims.

Was there no authority in those cases? Kagan asked. Katyal developed his argument and then answered: “My answer is yes.”

SCOTUSblog explains what happened next: “Kennedy, seemingly stunned, immediately sat forward, to make sure that Katyal had said ‘yes.' First he asked whether Katyal was saying that those cases were all wrongly decided, and then he put a more focused question: Was there no one with standing in those cases? The government’s lawyer said no taxpayer had standing.”

The combined cases are Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn.

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