She was even willing to spend some time offering a "hypothetical" to make her point -- just like they taught her at Harvard Law School. Justice Kagan wrote:Well, that is really spiffily written, but I don't see enthusing about her being "even willing to spend some time" writing it. Settle down, Andy. But you see why he's excited, don't you? It's been so demoralizing to liberals to have Justice Scalia writing readable, quotable dissents all these years while the other side of the Court has been so... boring.
Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.
April 7, 2011
I admired it myself (for the nicely clear writing), but the Atlantic's Andrew Cohen is downright fawning?