A Dollar Is a Dollar: Elena Kagan’s Style
By STANLEY FISH
When Elena Kagan was nominated by President Obama to be an associate justice of the Supreme Court, some observers speculated that she might be the long-sought liberal counterweight to Antonin Scalia, noted for his intelligence, his wit and his prose style. Of course it’s too early to tell, but Kagan’s dissent (her first) in Arizona Christian School Tuition Organization v. Winn would seem to give those distressed by the Court’s current direction some hope. (Scalia honed his rhetorical skills as a dissenter earlier in his career.)
The opinion itself is a predictable extension of the conservative majority’s practice of money laundering when it comes to Establishment Clause cases that involve financial aid to sectarian schools. At issue was an Arizona program that provides tax credits up to $500 for contributions to school tuition organizations, organizations that then turn around and give the funds to private schools, “many of which,” Justice Anthony Kennedy (writing for the majority) concedes, “are religious.” That the intention of the program is to funnel funds to religious schools doesn’t seem to be in dispute. In her dissent Kagan notes that “One STO advertises that ‘[w]ith Arizona’s scholarship tax credit, you can send children to our community’s [religious] day schools and it won’t cost you a dime.’”
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