Tuesday, July 05, 2011

Justice Kagan Channels Her Inner Scalia

By Mike Dorf


In my first Verdict column, I discuss last week's Supreme Court decision in Arizona Free Enterprise Club’s Freedom Club PAC ("AFECFCP") v. Bennett, in which the Court--5-4--struck down Arizona's system of public finance for elections. I note how, despite the fairly sharp disagreement on how to apply the Court's precedents to the Arizona law, the majority and dissent agree on a crucial premise: that campaign finance laws may not "level down" in an effort to ensure political equality. (Note that as a new feature of Verdict, if you'd rather absorb my column while driving to work or otherwise multitasking, you can listen to it as a podcast.)


Here I want to take a closer look at the tone of the dissent. When Justice Kagan was nominated to the Court last year, a number of liberal commentators expressed the hope that she might become a kind of "liberal Scalia"--someone who would go toe-to-toe with the perceived intellectual leader of the Court's conservative wing. It's still too early to tell whether that hope will prove justified, but some of what Justice Kagan wrote in her AFECFCP dissent suggests that in at least one important respect she is taking Justice Scalia as her model.


In particular, Justice Kagan's AFECFCP dissent is hard-hitting, punchy and sarcastic.  Consider this excerpt, in which she explains why Arizona's public finance system does not, in her view, penalize candidates who privately finance their campaigns:
[P]rivately funded candidates may well find the lump-sum system more burdensome than Arizona’s (assuming the lump is big enough). Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too.
Later we see more of the same, with her tone bordering on rudeness. She writes:
If public financing furthers a compelling interest—and according to this Court, it does—then so too does the disbursement formula that Arizona uses to make public financing effective. The one conclusion follows directly from the other. 
Except in this Court, where the inescapable logic of the State’s position is . . . virtually ignored. The Court, to be sure, repeatedly asserts that the State’s interest in pre-venting corruption does not “sufficiently justif[y]” the mechanism it has chosen to disburse public moneys. Only one thing is missing from the Court’s response: any reasoning to support this conclusion. 
To my mind, that's a step too far. It's the sort of calling out of one's fellow justices that, when engaged in by Justice Scalia, has been thought to alienate colleagues. Here is yet another example from Justice Kagan's dissent:
[T]he majority claims to have found three smoking guns that reveal the State’strue (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.  
Is Justice Kagan within her rights in these passages? Sure, as is Justice Scalia when he writes similar prose. But in both instances, it comes across--at least to me--as mean-spirited and a little bit immature.