The Court’s 5-4 decision today in Hein v. FFRF makes it much more difficult to challenge programs — in this case, the Bush administration’s decision, thorough executive order, to funnel taxpayer money to religious organizations — that raise serious Establishment Clause questions. I’m not at all persuaded by the Court’s holding; in the words of William Douglas, I think the Court’s opinion “reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of ‘thou shalt nots’ directed at Congress and the President as well as at the courts.” Particularly given the modern Court’s control over its docket, the constitutional merits of the issue should be what matters, and there’s little reason for the Court to create standing rules that make it more difficult to challenge serious Constitutional violations. A couple other points:
- We can see in this case the difference between the otherwise similarly reactionary Alito and Scalia. The latter urges the Court to be honest about what it’s doing: overruling Flast v. Cohen. Alito, conversely, prefers
simply ignoring the precedent“minimalism.” I can understand not going out of the way to overrule a precedent, as Scalia and Thomas will sometimes urge. But in this case Alito has adduced a distinction without a substantial difference. As Souter argues, “the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it.” Essentially, the effect of Alito’s approach is to produce the same outcomes while attracting less attention.
- The Court’s conservatives, needless to say, are not always on the side of reducing standing; as Jack Balkin has pointed out, “the most unprincipled and arbitrary parts of American constitutional law.” Compare this case with Northeastern Florida, in which Thomas wrote an opinion holding that a challenge to an affirmative action program could go forward even absent any evidence that the individuals challenging the program were denied a contract because of it. In fairness, Scalia and Thomas have created a clear, identifiable principle: standing rules should be liberal when they are likely to produce conservative outcomes and narrow when they are likely to produce liberal outcomes. Whether this is a defensible principle I leave to the reader.
…meanwhile, given the assertions of arbitrary authority by the administration, one must read this from Kennedy as black comedy: “It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.” Scout’s honor!
[Also at TAPPED.]