SUPREME COURT WATCH
all debtors who owned cars to an ownership deduc- tion. Justice Kagan’s second opinion, for a seven-justice majority in CSX Transportation, Inc. v. Alabama De- partment of Revenue, held that a railroad may invoke a provision of the Railroad Revitalization and Regula- tory Reform Act of 1976, 49 U.S.C. § 11501(b)(4), to challenge Alabama sales and use taxes that apply to the railroad but exempt other competitors in the trans- portation industry. True to tradition, the seven majority opinions that Justice Kagan authored this term were all in relatively noncontroversial cases: three were decided 9–0, two were 8–1, and two 7–2. Perhaps mindful of the mind-numbing quality of some of the issues her first opinions tackled, Justice Kagan showed some self- deprecating humor. When announcing her opinion in Smith v. Bayer Corp., in which the Court held that a federal court exceeded its authority in enjoining state class certification proceedings, Justice Kagan quipped: “This decision involves a very complex procedural issue. And if you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.”
Although Justice Kagan’s early majority opinions may have been soporific, her first dissents were anything but, perhaps giving Court watchers and litigants a sense about her personal judicial style. Justice Kagan authored dissents in two of the most bitterly divided 5–4 cases of the term. Her very first dissent was in Arizona Chris- tian School Tuition Organization v. Winn, the establish- ment clause case that was the subject of our column in the Spring issue of this magazine. Justice Anthony Kennedy’s opinion for the Court in Arizona Christian School Tuition held that the plaintiffs lacked taxpayer standing to challenge Arizona’s provision of tax credits for contributions to private school tuition organizations that provide scholarships to students attending reli- gious schools. Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, strongly disagreed with the majority’s reasoning. Justice Kagan attacked what she called the “arbitrary distinction” between di- rect government spending favoring religion, which the Court said will support taxpayer standing, and what Justice Kagan called “tax expenditures”—meaning “the various deductions, credits, and loopholes that are just spending by another name” and that, under the Court’s
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ruling, will not support standing. As we explained in our last column, the question of taxpayer standing for establishment clause challenges is one that has divided the Court for decades, and Justice Kagan jumped into that debate with both feet.
Justice Kagan also penned the dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, on be- half of the same group of four justices. That case in- volved a First Amendment challenge to Arizona’s public financing system for funding election campaigns for candidates for state office. The opinion for the Court, authored by Chief Justice John Roberts, struck down Arizona’s matching funds provision, which allocated additional funds to a publicly financed candidate if a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate, exceeded the publicly financed candidate’s initial state allotment. Justice Kagan argued that “[n]o precedent compel[led]” that result and that the “decision is in tension with broad swaths of . . . First Amendment doctrine.” Jus- tice Kagan apparently felt so strongly that the major- ity had unjustifiably interfered with Arizona’s election reform efforts that she announced her dissent from the bench—something that typically occurs only a handful of times a term.
In both of these dissents, as well as in her only other dissent, which came in Sykes v. United States, a case ad- dressing whether fleeing in a vehicle from a law enforce- ment officer counts as a violent felony for purposes of the federal Armed Career Criminal Act, 18 U.S.C. § 924(e), Justice’s Kagan’s law professor background was apparent. In each opinion, she used hypotheticals to support her reasoning. In Arizona Christian School Tu- ition, she managed to squeeze three hypotheticals in a single paragraph:
Consider some further examples of the point, but this time concerning state funding of religion. Sup- pose a State desires to reward Jews—by, say, $500 per year—for their religious devotion. Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State
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