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The “Minimalist” Illusion


Last week’s Establishment Clause standing case shows that the allegedly crucial divide between “minimalists” and “fundamentalist” conservatives on the Supreme Court is essentially meaningless, I argue in a new piece:

This is, of course, not the first time that the Roberts Court has relied on specious distinctions to deny taxpayers standing. In 2007, Alito, Roberts, and Kennedy ruled that taxpayers did not have standing to challenge a religious subsidy, because the subsidy was granted by the executive branch rather than by the legislative branch. This distinction was even more illogical — how does an illegal subsidy harm a taxpayer any less if the decision was made by the executive branch? Strangely enough, it was the fundamentalist conservatives on the Court who called out the distinction for being spurious. Justice Scalia noted that the distinction was “utterly meaningless” and invited “demonstrably absurd results.” The Court, Scalia argued, should either straightforwardly apply Flast or overrule it explicitly.

This split may seem to vindicate the distinction between minimalist and fundamentalist conservative justices, but here’s the point: In the end, all five conservative justices agreed on the merits and reached the same conclusion. In other words, failing to explicitly overrule a precedent doesn’t mean that it will actually be applied. To plaintiffs in the Arizona case, it makes very little difference whether they are denied standing because Flast was overruled or because the Court concocted an absurd distinction. In the end, they lose.

And in this particular case, as Kagan notes, the Supreme Court has instructed states how they can permanently insulate religious subsidies from Establishment Clause scrutiny, so the distinction between “funadmentalist” and “minimalist” positions is even more trivial than usual.

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  • Joe

    An earlier case was a prelude. The difference there was that O’Connor was still on the Court.


  • Rick Massimo

    They just need to be able to say “This is different because” and then have some words to go in there. What the words actually say doesn’t matter.

    They’re internalizing one of the dominant Republican narratives: that higher power means LESS responsibility and accountability. They’re the Supreme Court, and since no one can appeal their decisions they think they have LESS of a responsibility for those decisions to make sense, not more.

  • DrDick

    Good thing we don’t have any of those goddamned activist justices making law from the bench!

  • rea

    I suspect the “Minamalist illusion” of the headline has something to do with the proper way to spell “minimalist”. :)

    • Scott Lemieux

      Dammit, I thought I had fixed that!

  • Julian

    I like your article. When did nominally upholding a precedent while substantively eviscerating it become the MO for conservative jurisprudence? It seems like the hip new thing, but maybe it started with Rehnquist. I feel like (and note that I am admitting it’s a feeling, I don’t have any cites to back this up) open bigotry, religious zealotry, and defendant-crushing went out of fashion in legal circles around the time of the civil rights movement and now the thing to do is claim you’re upholding the spirit of those landmark rulings by doing the opposite of everything they accomplished.

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