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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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