The Significance of Hein (Part Two of Two)

The real significance of Hein is what it says about the varying approaches of the members of the Roberts Court. As I highlighted yesterday, the holding of the case, at least as articulated by the plurality, is not all that significant. Taxpayers have standing to sue only when the two requirements of Flast are met: (1) when a taxpayer alleges the unconstitutionality of an exercise of congressional power under the taxing and spending clause of Art. 1 s 8; and (2) the taxpayer establishes a nexus between that status and the precise nature of the constitutional infringement alleged. The plurality held that the challenged expenditures in Hein failed the narrow exception in Flast because the plaintiffs alleged violations of discretionary executive action rather than direct congressional spending, even though the money spent was appropriated to the executive branch pursuant to a general appropriation bill under Congress’s taxing and spending power.

Since law school, I have never fully been able to rationalize the Flast exception: What makes the Establishment Clause so special that it warrants a special exception to the Court’s standing doctrine? How is it different, let’s say, than Congress earmarking funds expressly for racially discriminatory private schools? Most taxpayers would be just as angry and just as “harmed” if Congress gave money to racially discriminatory schools (perhaps even more so) as they would be if Congress expressly appropriated funds to religious schools. Yet a taxpayer would have no standing in the former case and inexplicably would have standing to sue in the latter scenario. I suppose one could argue that it is hard to find a plaintiff that has standing to allege a violation of the Establishment Clause, at least where government spending is concerned, but there are at least three problems with that rationale: first, the Court has consistently stated that standing should not be found simply because there is no conceivable plaintiff that has standing; second, where government spending is at issue, it is equally difficult to find a plaintiff with a sufficient injury regardless of the underlying constitutional right at issue; and third, as Justice Alito acknowledged, in many Establishment Clause cases there are potentially other plaintiffs who may have a more direct injury than a taxpayer.

Nonetheless, the plurality (consisting of Chief Justice Roberts and Justices Kennedy and Alito) applies stare decisis to uphold a rule that makes little sense doctrinally, as Justice Scalia repeatedly points out in his opinion concurring in the judgment. Not only that, in deciding yesterday’s case, the plurality renders the whole line of cases before and after Flast even more difficult to reconcile with its predominant standing jurisprudence: how can direct Congressional spending for a religious purpose confer standing, while precisely the same executive action pursuant to a general appropriation bill from Congress cannot? After all, the Court stated in Everson that the Establishment Clause was written into the Bill of Rights in part as a response to the colonial charters granted by the English Crown that were designed to erect religious establishments in the colonies. Madison’s Remonstrance aside, there seems to be just as much evidence that the Establishment Clause is directed at executive action (i.e., a response to the quasi-executive English Crown) as it is to congressional action. Moreover, as Marty points out, the expenditure in this case did stem out of Congress’s taxing and spending power under Art. I s 8, but it just involved another step, executive action, that was missing in the Flast case. But is that additional step sufficient to make a principled distinction? Not in my mind, for the reasons I stated above. Finally, as Justice Scalia points out in his opinion concurring in the judgment, the Flast factors have “absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability.” Therefore, I find myself agreeing with Jack Balkin that the plurality opinion yesterday makes “little sense as a principled matter.”

What does all of this commentary mean? Perhaps more than any other case, yesterday’s decision in Hein demonstrates that Chief Justice Roberts and Justice Alito value judicial norms differently than Justices Scalia and Thomas. Chief Justice Roberts and Justice Alito are satisfied in making incremental moves in the law rather than taking the bold steps advocated by Justices Scalia and especially Thomas. As Orin Kerr predicted at the Volokh Conspiracy, Chief Justice Roberts and Justice Alito appear to be judicial minimalists in the mold of Justices Harlan and Frankfurter rather than first-principle conservatives like Scalia, Thomas or Bork. Perhaps the two newest Justices will change over time, as Lee Epstein and several other political scientists have empirically demonstrated that some Justices drift ideologically as they gain more experience. Or perhaps they are exactly what they said they would be—judicial minimalists that have respect for precedent—as both stated during their confirmation hearings. Only more cases like Hein will tell us what types of Justices they really are.