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STANDING FOR ME... 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, through 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.
--Scott Lemieux
COMMENTS (6)
So, if I read the decision correctly, the President could use discretionary funds to set up The First Methodist Church of the United States, or pay people to hand out Hare Krishna literature at airports, and *no one* could sue to prevent it. (Since standing questions are resolved prior to merits, the case would be identical to Heim).
Posted by: Carleton Wu | June 25, 2007 2:20 PM
"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."
Oh. come on, Scott. Except for the once-in-a-blue moon case, Scalia and Thomas ALWAYS manage to twist logic, precedent and common sense into leading them to the conclusion conservatives favor, regardless of the underlying legal question.
Posted by: Anonymous | June 25, 2007 2:45 PM
As you state, perhaps the most infuriating aspect of these SOBs, who preen about as such principled jurists, is that they are blatantly even more outcome oriented--and activist--than William O. Douglas in the '60s. I was musing on their recent decision holding that an inmate's appeal was time barred even though it was was filed within the time limit explicitly (though erroneously) stated to him by the district court. Clearly, if the losing party had been a large corporate defendant in an employment discrimination action(represented by well heeled counsel) and their appeal had been late in just the same manner, Scalito & Co. would have found a way to allow the appeal. And like all cognitive dissonance immune Republicans, they would have had no trouble handing both decisions down the same day.
Posted by: Marlowe | June 25, 2007 4:34 PM
In fairness to Thomas in Northeastern Florida, however -- I would much prefer not to be fair -- the plaintiffs given standing were contractors who at least theoretically could lose specific business from minority set-asides -- i.e., a connection more than just as taxpayers.
Posted by: urban legend | June 25, 2007 5:29 PM
The majority members of the Supreme Court have turned it into an abomination. They have no intentions of observing case precedent when the precedent is not in line with their judicial activism. The Justices, and I say that with disgust, clearly don't care that they have taken this merged branch of government and turned it into nothing more than a mechanism to further extremist and elitist political ideology.
It's time to start thinking about a constitutional amendment to reorganize this Court, as it clearly does not fit the intentions of the founding fathers, in regards its place in a democratic form of government, by, at least, having appearance of propriety and veracity. The major problem with this idea is that most Americans don't have a clue about Constitutional Law, separation of powers, and the importance of a Court that is not a talking point parrot for any political party or personal ideology.
These are truly sad times.
Posted by: Sharon Dupree | June 26, 2007 12:34 PM
This is what you get when you put a lot of reactionary Catholics on the Court (Scalia, Thomas, Alito, Roberts, even Kennedy). Those parochial schools will be gold plating their faucets and crucifixes very soon.
Posted by: Ralph P. | June 27, 2007 3:23 AM