In today’s New York Times, Stanley Fish comments on Justice Elena Kagan’s rhetorical style in her dissent in Arizona Christian School Tuition Organization v. Winn (as well as his views on the case itself and his deep admiration and appreciation for Justice Scalia). In Fish’s opinion, Kagan displays
a style of argument that marks her as someone to reckon with, both inside and outside the Court. And that she does, not by attempting to match Scalia’s sentence-by-sentence pyrotechnics (see for example his scintillating and prophetic dissent in Lawrence v. Texas) but by dismantling the majority’s reasoning piece by piece until there is nothing left standing.
If there is a rhetorical gesture that marks her performance (as biting scorn marks Scalia’s), it is “Oh yeah?” — as in, I see you assert X, but here is evidence, often from your own mouths, that X is a bad or inapposite or silly argument. Her weapon of choice is not the hit-and-run example (that is Scalia’s forte), but the extended example that open up and fills the landscape. To illustrate her point that the majority’s distinction between direct and indirect funding “is one in search of a difference,” she asks us to “imagine that the Federal Government decides that it should pay hundreds of millions to insolvent banks” (imagine that!) but finds itself resisted by taxpayers who don’t want “their hard-earned money to reward irresponsible behavior.”
Suppose further that the government thought to disarm the resistance by allowing banks “to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury.” Would the proposal, she asks, “calm the furor or would most taxpayers respond that a subsidy is a subsidy (or a bailout is a bailout ), whether accomplished by one means or the other?” The question answers itself, but she answers it — “Surely the latter” — and she adds “we would think the less of our countrymen if they failed to see through this cynical proposal.” She doesn’t accuse her fellow justices of endorsing a cynical proposal; she just leaves it there.
Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”
“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”
Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.