Comments on: The Significance of Hein (Part Two of Two) http://www.scotusblog.com/2007/06/the-significance-of-hein-part-two-of-two/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Roger Friedman http://www.scotusblog.com/2007/06/the-significance-of-hein-part-two-of-two/#comment-11426 Roger Friedman Wed, 27 Jun 2007 17:17:07 +0000 http://www.scotusblog.com/wp/uncategorized/the-significance-of-hein-part-two-of-two/#comment-11426 <p>David, the <i>Flast-Hein</i> issue of taxpayer standing to challenge violations of the religion clause is important not for what it says about taxpayers or religion, but for what it says about standing. As others have cogently noted, this term reveals the Reagan Justice Department triumphant, and one of the main tools of the counterrevolution has been standing.</p> <p>Everybody likes an in-joke on which they are in. That is why lawyers like standing, justiciability, abstention and other doctrines made by lawyers and judges with scant basis in the Constitution or popular mind. The standing doctrine is being reduced to allow only Scalia's "wallet issues." It is so useful to the counterrevolutionists because it denies the courts any role in the non-monetary issues that we the people used to bring to them. Any injury to the monetary interest of a corporation, no matter how small, is automatically entitled to judicial protection, but a non-financial interest must jump through hoops.</p> <p>Yet non-financial values are important to this country. The founders saw the strife that official religion brought to the polity and sought to bar it. That many of us enjoy the benefit of this vision should not mean that none of us can challenge it. It was deeply un-American for Reagan to recognize the Vatican, yet nobody has standing to challenge it. If the Republicans run out of federal facilities to name for Reagan, and decide to make Nancy "Lady Reagan" with Ronny lord-in-waiting, I would hope that there would be citizen standing to challenge that even though it cost not a farthing. It is part of the "republican form of government" that the Constitution guarantees us but which the Supreme Court refuses to enforce for reasons of "redressability."</p> <p>But what of the more transcendant, non-financial values? Like not killing off species? Ooops, no value there, a "shall" got in the way. Like not committing torture. Ooops, non-citizens outside the US can't complain, and citizens don't have standing. Like not administering cruel and unusual punishment. Ooops, the prisoner didn't file within the 15-minute period allowed by the 14th step of the grievance procedure, and non-prisoners can't complain. Like having the right to vote. Ooops, you didn't pick up your registered mail. Like being able to walk this land. Ooops, no ID? Just come with us while we find you who you are. Be thankful you don't look Hispanic, in that case we'd just expel you.</p> <p>It is only a matter of time before the counterrevolutionaries go after their bete noir, <i>Baker v. Carr,</i> probably on some basis like "we've found out we can't distinguish gerrymandering from political spoils, therefore we can't remedy it." Scalia's already on the case. But think of the political stasis that existed from Georgia and Tennessee to New York City and Los Angeles County, a political stasis that diminished everyone's right to vote and lead to corruption and cronyism. Only the judiciary could break that stasis, despite the fact that previous Courts had found it non-justiciable, despite the fact that it was a transcendental value that was at stake. That time will come again.</p> David, the Flast-Hein issue of taxpayer standing to challenge violations of the religion clause is important not for what it says about taxpayers or religion, but for what it says about standing. As others have cogently noted, this term reveals the Reagan Justice Department triumphant, and one of the main tools of the counterrevolution has been standing.

Everybody likes an in-joke on which they are in. That is why lawyers like standing, justiciability, abstention and other doctrines made by lawyers and judges with scant basis in the Constitution or popular mind. The standing doctrine is being reduced to allow only Scalia’s “wallet issues.” It is so useful to the counterrevolutionists because it denies the courts any role in the non-monetary issues that we the people used to bring to them. Any injury to the monetary interest of a corporation, no matter how small, is automatically entitled to judicial protection, but a non-financial interest must jump through hoops.

Yet non-financial values are important to this country. The founders saw the strife that official religion brought to the polity and sought to bar it. That many of us enjoy the benefit of this vision should not mean that none of us can challenge it. It was deeply un-American for Reagan to recognize the Vatican, yet nobody has standing to challenge it. If the Republicans run out of federal facilities to name for Reagan, and decide to make Nancy “Lady Reagan” with Ronny lord-in-waiting, I would hope that there would be citizen standing to challenge that even though it cost not a farthing. It is part of the “republican form of government” that the Constitution guarantees us but which the Supreme Court refuses to enforce for reasons of “redressability.”

But what of the more transcendant, non-financial values? Like not killing off species? Ooops, no value there, a “shall” got in the way. Like not committing torture. Ooops, non-citizens outside the US can’t complain, and citizens don’t have standing. Like not administering cruel and unusual punishment. Ooops, the prisoner didn’t file within the 15-minute period allowed by the 14th step of the grievance procedure, and non-prisoners can’t complain. Like having the right to vote. Ooops, you didn’t pick up your registered mail. Like being able to walk this land. Ooops, no ID? Just come with us while we find you who you are. Be thankful you don’t look Hispanic, in that case we’d just expel you.

It is only a matter of time before the counterrevolutionaries go after their bete noir, Baker v. Carr, probably on some basis like “we’ve found out we can’t distinguish gerrymandering from political spoils, therefore we can’t remedy it.” Scalia’s already on the case. But think of the political stasis that existed from Georgia and Tennessee to New York City and Los Angeles County, a political stasis that diminished everyone’s right to vote and lead to corruption and cronyism. Only the judiciary could break that stasis, despite the fact that previous Courts had found it non-justiciable, despite the fact that it was a transcendental value that was at stake. That time will come again.

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