Comments on: Analysis: “Flast” lives, but in what form? http://www.scotusblog.com/wp/analysis-flast-lives-but-in-what-form/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: r.friedman http://www.scotusblog.com/wp/analysis-flast-lives-but-in-what-form/comment-page-1/#comment-10961 r.friedman Wed, 28 Feb 2007 21:54:22 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-flast-lives-but-in-what-form/#comment-10961 <p>My impression from the transcript was that Scalia's attack on both sides was to lay the groundwork for overruling precedent and striking out in a new direction. But since Scalia seemed genuinely shocked by the idea that an executive decision to build a church could go unchallenged, the outcome must be that <em>somebody</em> has standing.</p> <p>The "liberals" seemed willing to overrule one rationale of <i>Valley Forge</i> and adopt Justice Stewart's concurrence in <i>Flast</i>, for the sake of a simple, consistent rule. But, as Lyle noted, Kennedy seemed unwilling to expand taxpayer standing. The "conservatives" may be able to rally around Roberts' position, echoed by Clement, that establishment clause violations could be raised on a basis other than taxpayer standing, in the manner of the Ten Commandments cases. And Breyer, at least, is perfectly happy to handle religion cases that way (see his framing of the "injury" during the argument and his answer to a question about his votes on the Ten Commandments cases at the Jewish Public Affairs event on the C-SPAN Judiciary page).</p> <p>Indeed, Clement didn't even seem to care about winning the case on his argued standard, which he insisted was an attempt to discern the Court's position from its cases. So this argument may have been a kabuki dance to justify the overruling of <i>Flast</i>. And of course, by the time the next challenge to Bush's support of religion gets through the courts, he'll be gone.</p> <p>Roger Friedman</p> My impression from the transcript was that Scalia’s attack on both sides was to lay the groundwork for overruling precedent and striking out in a new direction. But since Scalia seemed genuinely shocked by the idea that an executive decision to build a church could go unchallenged, the outcome must be that somebody has standing.

The “liberals” seemed willing to overrule one rationale of Valley Forge and adopt Justice Stewart’s concurrence in Flast, for the sake of a simple, consistent rule. But, as Lyle noted, Kennedy seemed unwilling to expand taxpayer standing. The “conservatives” may be able to rally around Roberts’ position, echoed by Clement, that establishment clause violations could be raised on a basis other than taxpayer standing, in the manner of the Ten Commandments cases. And Breyer, at least, is perfectly happy to handle religion cases that way (see his framing of the “injury” during the argument and his answer to a question about his votes on the Ten Commandments cases at the Jewish Public Affairs event on the C-SPAN Judiciary page).

Indeed, Clement didn’t even seem to care about winning the case on his argued standard, which he insisted was an attempt to discern the Court’s position from its cases. So this argument may have been a kabuki dance to justify the overruling of Flast. And of course, by the time the next challenge to Bush’s support of religion gets through the courts, he’ll be gone.

Roger Friedman

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