A lot has already been said about Justice Kagan's dissent in Town of Greece v. Galloway. Much of that talk has been outright glowing. UCLA Dean Erwin Chemerinsky, writing for SCOTUSBlog, called the dissent "powerful." So did Professor Geoffrey Stone. Professor Sandy Levinson, over at Balkinization, described the dissent as "a great opinion" and "a truly great dissent" that is "worthy of inclusion in the canon that includes Justice Jackson's magnificent opinion in Barnett."
Is that praise due? I came to Town of Greece with a relatively open mind. (Cue skepticism). As an originalist/textualist, my intellectual leanings were in the direction of Justice Thomas' dissent. But as a secular humanist, my sympathies were with the plaintiffs and everybody else who is distrustful of any connection between government and religion. As a policy mattter, I think it's abhorrent that legislative prayer exists; yet I'm not sure the Constitution forbids it. After reading the briefs and listening to the argument, I thought that the Town would win and that the Town should win.
At any rate, I was on the fence enough that I thought the dissenters might be able to persuade me.
Justice Kagan's dissent did not persuade me. In fact, I can't imagine that the dissent would persuade anyone; the only people who will agree with it or find it "persuasive" are the initiate. And they hardly need persuasion.
Here are just a few reasons the dissent doesn't live up to its billing:
1. It's too long. The dissent is long. Like, longer than the majority opinion. A long dissent is fine when it's warranted. But the first 8 pages of the dissent could easily have been cut, and probably shouldn't have survived to the second draft. A good part of those 8 pages is devoted to setting out Kagan's hypotheticals. As Justice Alito points out in his concurrence, those hypos give the impression that the Court was sanctioning government prayer at the polling booth. But that simply can't be the case, given that the majority based its holding on Marsh--a case that deals strictly with legislative prayer.
2. It overargues. Justice Kagan overargues from the get-go. On page 2, she speaks of the "First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government." I was honestly unaware that the First Amendment made any such promise. The First Amendment doesn't talk about "equal shares." Kagan has apparently assumed that the First Amendment governs the day-to-day relationship between citizens and their government. That's not a terribly obvious proposition. And, even if the First Amendment means that we each own an equal share, it certainly doesn't promise an equal share; generally, a written document doesn't "promise" something that it doesn't speak about.
3. Its citations don't actually lend support. At one point, Justice Kagan cites to a written correspondence between George Washington and Moses Seixas, an early Jewish American. Seixas lauded the new American government for being “a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine." At 24. Washington appeared to agree. In the first instance, I don't know what this private correspondence is supposed to tell us about the First Amendment. Neither Seixas nor Washington mention it.
In the second instance, Kagan then attributes a meaning to Seixas' words that clearly is not there. Note that Seixas doesn't mention religion. Somewhat to the contrary, he singles out "Nation, tongue, or language." You'd think that if he meant to include religion, he would added "faith" or "religion." Yet Kagan isn't deterred by the fact that Seixas didn't say what she wanted him to say; she goes ahead and interprets that he meant to say "Christian and the Jew alike." At 24. Her citation to the Seixas/Washington correspondence doesn't stand for the proposition she claims it does. That's generally a sign of bad lawyering.
4. Its language is flowery, but not forceful. On page 1, Justice Kagan calls "religious equality" a "breathtakingly generous constitutional idea." She talks about a "glaring problem" in the majority's reasoning. She describes irrelevant facts about Marsh as though she's a novelist: "It is morning in Nebraska, and senators are beginning to gather in the State’s legislative chamber: It is the beginning of the official workday, although senators may not yet need to be on the floor." She relies on conclusory statements: "That is not the country we are, because that is not what our Constitution permits."
If I had to sum it up, I'd say that the dissent reads more like a Slate author's description of Town of Greece than like a piece of actual legal writing. It also frequently reminded me of the immortal words of Sarah Palin--"hopey-changey stuff."
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