Saturday, April 9, 2011
In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause. The Court held that the taxpayer plaintiffs lacked standing.
In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:
On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).
In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' " Dissenting Opinion at 19.
Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’” This is quoted by the Court, but Kagan disputes the majority's reliance:
And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.
Dissenting Opinion at 18. Whenever the majority in Winn considers “tradition” it does so in the text; the Court’s opinion does not possess any footnotes. Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:
The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.
Opinion at 4.
The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review. Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one. What does the Court actually say about tradition? Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following “tradition-related” terms: “tradition,” “culture,” “custom,” “heritage,” or “history” with a yield of 222 entries. He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.
Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs. The Justice most likely to resort to tradition? Not surprisingly, it is Justice Scalia. The Justice least likely? Perhaps more surprisingly, Justice Thomas. Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts. Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.
Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?
[image: James Madison, 1818, Portrait in the White House Collection, via]