Justice Kagan’s vehement dissent in Arizona Christian School Tuition Organization v. Winn complains that Justice Kennedy’s majority opinion offers a “novel distinction in standing law between appropriations and tax expenditures [that] has as little basis in principle as it has in our precedent.” Charging that Kennedy’s decision “devastates taxpayer standing in Establishment Clause cases,” she extravagantly contends that the decision “damages one of this Nation’s defining constitutional commitments.” In her judgment, plaintiffs have standing “under any fair reading” of Flast v. Cohen.
For present purposes, I’m going to set aside the debate over whether the Flast v. Cohen exception to the bar on taxpayer standing should continue to exist. (In his concurring opinion, Justice Scalia, joined by Justice Thomas, again argues for Flast to be overruled, calling it “an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established.”) I’m also going to pass over the fact (acknowledged by Kagan) that other bases of standing will remain for persons alleging Establishment Clause violations.
Instead, I want to highlight something that I find remarkable and very amusing: Kagan contends that plaintiffs have standing “under any fair reading” of Flast, but the Solicitor General’s office, at the very time that she remained Solicitor General and continued to head the office, submitted an amicus brief arguing that plaintiffs did not have standing under Flast. Specifically, the SG’s amicus brief (pp. 13-14) argues along the same line that Justice Kennedy’s opinion adopts:
Unlike the statute in Flast …, the Arizona statute at issue here does not make grants or disburse government funds, and it does not direct the transfer of money to religious institutions. Rather, the statute merely provides a beneficial tax consequence for private citizens who donate their own funds to STOs of their own choosing. The money involved never enters the State’s treasury, and the portion of it that goes to religious institutions does so only due to the unfettered discretionary choices of private individuals.
These two key features—a credit against taxes owed by a private person rather than a grant out of the public treasury and independent private decisions to contribute to religious organizations rather than legislative mandate to pay money—distinguish this statute from the one at issue in Flast. Respondents’ asserted injury is more speculative and attenuated than that found adequate in Flast and thus provides no basis for standing.
Now, it’s of course true that Kagan, in order to advance her own confirmation prospects, declined to take on any new matters as Solicitor General following her nomination, and I am certainly not suggesting that she played any role in the SG’s amicus brief in this case. But it’s quite striking for her to slam Justice Kennedy so hard for taking the same position that the Obama administration advocated, and all the more so in light of the fact that she actually remained head of the Solicitor General’s office at the time that it submitted its amicus brief.
Addendum: I am certainly not contending that Kagan was obligated to abide by the position that the SG’s office took. As I hope my post makes clear, what I find remarkable is not that Kagan disagrees with that position but that she somehow sees fit to slam Kennedy for adopting it, as though it were beyond the bounds of what any reasonable person could fairly conclude.