advocacy and agostini

[Steffen N. Johnson]

Steffen JOhnson writes:

would it be legitimate for an advocate, say in future cases involving
related issues like vouchers, to say
>that the court somewhat overstated the significance of the witters,
zobrest, >rosenberger line of cases -- or must the court's word be taken at
face >value?  how would one argue for or against reading too little/too much
into >the court's prose?
>

Sandy Levinson responds:

>>What in the world would it mean to say that "the court's word [must] be
taken at face value"?  Agostini, like all complex decisions, certainly
offers more than enough wiggle room to allow a competent advocate to argue
that vouchers are either perfectly all right (private decisions, no state
coercion) or absolutely awful (money goes into school coffers albeit in two
steps rather than one).

of course there's wiggle room in agostini, sandy, and of course any decent
advocate could distinguish title I from vouchers.  but i was asking a more
specific question, regarding how one might attack agostini in sort of a
collateral fashion.  that is, i was not asking how one might distinguish
agostini from vouchers on its facts, but how one might use the fact that the
court was overstating the strength/consistency of its post-aguilar doctrine
in order to legitimize reaching the merits of the establishment clause issue
to discount the case's holding.  perhaps "face value" was a poor choice of
words, but i await thoughts on the validity/strategy of such arguments.