The Supreme Court Denies Plaintiffs Standing to Challenge Bush Administration Activities That They Allege Violated the Establishment Clause:
What This Decision, and Others This Term, Reveal About the Court

By VIKRAM DAVID AMAR
Friday, Jul. 06, 2007

One case that will help define this Supreme Court Term - and the current Court - is Hein v. Freedom From Religion Foundation, Inc., handed down last week. The plaintiffs challenged various conferences, speeches, and events the Bush Administration had organized and sponsored, arguing that these activities were intended to and did in fact favor religious faith-based providers of social services over secular social service providers. That kind of preference, they said, violates the Establishment Clause.

In this column, I'll briefly discuss Hein's ruling, then go on to consider how it reflects upon the Court, and this Term.

The Ruling in Hein, and How It Might Be Circumvented

Last week, the Court decided that plaintiffs lacked "standing" to seek redress in the federal courts under Article III of the Constitution. They had brought suit only in their capacity as federal taxpayers who objected to the federal monies being used for the allegedly unconstitutional Administration activities, and, the Court said, that fact was not enough to form the basis for standing.

In its ruling, the Court cemented narrow limitations on so-called "taxpayer standing." In the past, this tool had generally been unavailable to constitutional plaintiffs because of the Court's fears about its potential breadth, yet it had been of some utility to persons who allege federal violations of the Establishment Clause.

After Hein, in order to invoke "taxpayer standing," an Establishment Clause plaintiff must allege more than that the federal government has expended some funds in a way that allegedly violates the Clause. She must also allege that the funds are being spent pursuant to a particular Congressional statute that directs that the funds be spent in the (allegedly) unconstitutional way.

In Hein, the challenged expenditures were undertaken pursuant to broad executive discretion, rather than a specific Congressional direction. In such circumstances, the Court ruled, earlier decisions by the Court that had opened the standing door a bit for Establishment Clause challenges - most notably Flast v. Cohen -- simply do not apply.

To be sure, the Hein ruling will have a non-trivial effect on Establishment Clause litigation going forward. But the obstacle it erects might be circumventable in some settings.

That's because many challenges similar to the one brought by the Hein plaintiffs might be brought by persons who base their standing not upon their taxpayer status, but rather upon the way the government's religious favoritism affects them particularly.

For example, secular social service providers who felt they might be losing government contracts because of the allegedly favorable treatment given to religious organizations might be able to plead facts sufficient to establish standing in a case like Hein. Time will tell.

The Current Court: Conservative-Leaning, and Likely to Stay that Way

But perhaps more interesting than its implications for Establishment Clause challenges, is the way Hein illustrates important features of the current Court.

First, and most obviously, the Roberts Court - like the result in Hein - tends to be ideologically conservative. We shouldn't be surprised by that. When Justice O'Connor was replaced by Justice Alito two Terms ago, every knowledgeable analyst predicted a perceptible move to the right. That leaning will stay with us even if a Democrat wins the White House in 2008, because none of the five members of the Court who make up the conservative majority (Roberts, Alito, Thomas, Scalia, and Kennedy) is likely to depart anytime soon.

Indeed, the person most likely to leave the Court next, given his age (87), is Justice Stevens, one of the Court's most liberal members. If Justice Stevens were to be replaced with a liberal voice, that would simply hold the current 5-4 conservative advantage in place; it would not alter it. Moreover, if Justice Stevens (or another member of the liberal minority) were to leave, and be replaced by a more conservative jurist, then the conservative drift might pick up speed.

Even Beyond Its Many Split Rulings, This is a Deeply Divided Court

Second, the Roberts Court is often fractured. During his confirmation hearings, Chief Justice Roberts expressed hopes about reducing the number of rulings with multiple opinions, but that has proven overly optimistic. This past Term, 24 of the Court's 73 rulings, or more than one-third, were resolved 5-4, and often included sharply worded dissents.

Moreover, within these 5-4 rulings, the Justices often exhibited even more division as to the proper legal approach that should govern the dispute. Sometimes, they fell into a 2-3-4 pattern. For example, in Hein, Justices Antonin Scalia and Clarence Thomas would have eliminated taxpayer standing altogether, and thus joined a 5-justice majority rejecting it in this particular case as well.

Sometimes, they fell into a 4-1-4 pattern. For example, in the public school integration cases, Justice Kennedy's opinion left more operating room open for schools seeking to ensure racial balance, than did the writing in favor of the five-Justice majority's result that was joined by the Chief Justice and Justices Scalia, Thomas and Alito. In short, there are differences of opinion within the conservative majority, with Justice Thomas and (only slightly less often) Justice Scalia staking out the most conservative position.

Third, these patterns show clearly that Justice Kennedy is the fulcrum of the Court. He was in the majority in each and every one of the 5-4 rulings this year, and he voted in the majority in 69 of the 72 cases in which he participated. The Court goes as he goes; his often nuanced voice (which critics on both sides sometimes attack as being inadequately grounded in constitutional principle) regularly becomes the holdings for the Court that other courts and litigants must heed.

Nor was Kennedy's centrality hard to predict. Analysts expected that Justice O'Connor's departure would leave the "center" alone for Justice Kennedy. But the numbers this Term bearing out Justice Kennedy's role are nonetheless striking.

What Hein Teaches Us About Standing Doctrine: Confusion in Underlying Establishment Clause Law Has Spread to Related Standing Doctrine

Fourth, the Hein case illustrates how substantive murkiness and confusion in an area of law often screws up the law of "standing," and vice versa. The Hein majority is afraid that if plaintiffs can challenge, on Establishment Clause grounds, every federal expenditure, then the courts will be flooded with claims contesting virtually everything an Administration does.

But this fear - which seems exaggerated in any event - is generated only by the utter confusion that has characterized substantive Establishment Clause jurisprudence. The Court, in giving meaning to the Establishment Clause, has not settled on any coherent approach or set of approaches. Indeed, many of the rulings (like those a few years back involving the Ten Commandments' displays) seem hopeless contextual to the point of being ad hoc.

If the Court were less fractured and more coherent on its approach to what the Establishment Clause means on the merits, then it wouldn't have nearly as much need to manipulate standing rules in arbitrary ways. Clear rules would go a long way to ameliorate "floodgates" fears, as plaintiffs seeking to file questionable suits would know when they would, and would not, lose at the trial court level.

The Modern Court Should Look More to Principle, and Less to Precedent

Finally, Hein illustrates the modern Court's tendency to ground its constitutional decisions too much in past judicial precedent as opposed to constitutional principle and coherence.

The line the Hein Court draws - between Congress and Executive programs to promote religion - makes absolutely no sense. For starters, as the Court has itself noted in other cases, there is a provision the Constitution's Appropriations Clause mandates that "no Money shall be drawn from the Treasury, but in Consequence of Appropriation made by Law." In other words, all expenditures from the Treasury must be approved by statute. Thus, any Executive program, to be funded, must in a sense be a Congressional program too.

The reason for this command, the Court has said, is simple. Expenditures of federal money must be attributable to decisions made by Congress, so that democratic accountability is ensured: "[T]he Clause has a . . . fundamental and comprehensive purpose --. . . to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents. . . ."

But if all expenditures owe their legitimacy to Congressional authorization, then it makes little sense to distinguish between expenditures Congress explicitly directed, and those which arise from Executive discretion. After all, Congress can be assumed to agree with the latter, else it would cut off or limit the appropriations.

Moreover, and relatedly, as Justice Stevens' dissent in Hein argues, no one has suggested that the Establishment Clause's anti-favoritism norm doesn't bind the Executive branch, nor that the founders of the First Amendment were unconcerned with Executive attempts to mandate a national religion.

Indeed, Justice Alito's opinion delivering the judgment for the Court in Hein doesn't even try to defend the line it has drawn. All Justice Alito says is that the language of Flast v. Cohen -- the case in which the taxpayer standing exception in Establishment Clause cases was created -- seems to distinguish between Congressional and Executive decisions, and subsequent cases have seemed to incorporate that line.

But why is that enough, if no one can defend the line as making any legal sense?

True, stare decisis, or respect for precedent, serves some important ends, like protecting reliance and promoting stability in the law. But it's hard to see any reliance on Flast. Eliminating the line - and extending taxpayer standing to challenge executive programs - wouldn't seem to violate anyone's expectations. (Nor, as I mentioned above, would it be unmanageable, especially if the Establishment Clause jurisprudence on the merits were straightened out.)

Nevertheless, the modern Court seems not to ask whether (some) of the Court's past rulings are defensible. Rather, it asks only whether there is some compelling reason to abandon them. I tend to agree with Justice Scalia's suggestion in Hein that avoiding "[in]sane" and "absurd" lines should be reason enough.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Ads by FindLaw