More thoughts about Hein v. Freedom from Religion Foundation, crazy decision about taxpayer standing in establishment clause cases
First, I want to say that I think that the whole idea of taxpayer standing in establishment clause cases (as well as some other cases) is a crock, partly because some violations of the establishment clause involve tax spending while others do not. For example, according to Hein, there is no standing to sue over a religious symbol on public property if that symbol is funded by the executive branch. However, ironically Hein would not be a barrier to standing to sue if the religious symbol is privately funded, because then taxpayer standing would not be an issue because tax spending is not involved. If anything, it should be the other way around -- a government-funded religious symbol appears to be a bigger violation of the establishment clause than a privately-funded religious symbol, hence standing to sue should be stronger in the government-funded case. There are other reasons why the taxpayer-standing issue is a crock, but this one reason is sufficient. The whole taxpayer-standing issue really sucks big-time.
The Supreme Court's Hein decision is here. Here is a summary of the decision (authors of the opinions are shown in bold):
"Judgment of the court" -- Alito, joined by Roberts and KennedyOpposed granting standing to sue. Held that in establishment clause cases, there should be taxpayer standing in challenges to Congressional authorization of spending but not in challenges to executive-branch authorization of spending (even where the funds originate from Congressional authorization). Called "judgment of the court" despite being a minority opinion, with even fewer justices than the "dissenting" opinion, 3 vs. 4.
Concurrence: Scalia, joined by ThomasOpposed granting standing to sue. Held that there should be no taxpayer standing in establishment clause cases at all, i.e., that Flast v. Cohen should be overturned, or at least that the taxpayer-standing rules of Flast be applied to other kinds of challenges to government spending. However, opposed Alito's distinction between Congressional authorization and executive-branch authorization.
Dissent: Souter, joined by Stevens, Ginsburg, and BreyerFavored granting standing to sue. Like Scalia and Thomas, opposed Alito's distinction between Congressional authorization and executive-branch organization.
Concurrence: Kennedy, in addition to joining Alito's opinion, wrote a separate concurring opinion which does not enter into my analysis here.
So, in summary --
The court voted 5-4 to deny standing. However, it is assumed that Alito's distinction between Congressional spending and executive-branch spending is a binding ruling of the court, even though the opinions show that the justices are opposed by 6-3 against making that distinction (
In a Supreme Court decision that does not have a majority opinion, such as Hein, the rationale of the narrowest opinion supporting the result becomes the controlling law. Therefore, the controlling opinion in Hein is the opinion that, first, found no standing for the plaintiffs in Hein, and, second, will eliminate standing for the least number of potential plaintiffs in future cases.
However, there ought to be a court rule that when a majority of the Supreme Court justices expressly oppose a particular ruling, as is the case here (6 justices opposed the distinction between Congressional and executive-branch spending authorizations), that particular ruling cannot be binding. Theoretically, the way things are now, it is possible for a single justice to make a binding ruling that is expressly opposed by the opinions of all the other justices. What if Roberts and Kennedy had joined in Scalia's opinion instead of Alito's? Then Alito's lone opinion would have been controlling. That's ridiculous.
Scalia and/or Thomas might have used the following reasoning: "we would really like to see this court either overturn Flast v. Cohen or at least apply the reasoning of Flast to other cases involving government spending, but since this court is not going to do that, we are going to join Souter's opinion so that we will at least block Alito's distinction between Congressional and executive-branch authorizations of spending." Scalia and Thomas essentially threw away their votes, except for the Pyrrhic victory of denying standing in this particular case.
BTW, here is a statement of Souter's opposition to Alito's distinction between Congressional and executive-branch authorization of spending:
Flast v. Cohen, 392 U. S. 83, 102 (1968) , held that plaintiffs with an Establishment Clause claim could “demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Here, 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. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent.
Scalia's following statement agrees with Souter's preceding statement:
As the dissent correctly contends and I shall not belabor, see post, at 3–4 (opinion of Souter, J.), Flast is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability . . . . (emphasis in original)
Actually, Alito's distinction between Congressional and executive-branch authorization of funding is implicit in the following ruling from Flast v. Cohen, 392 U.S. 83, 102 (1968):
. . . .a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.
The district court decision in Caldwell v. Caldwell (the UC Berkeley website case -- link to post-label group is at bottom of this article, also listed in the sidebar of the homepage) used the above ruling in Flast to argue that the plaintiff lacked federal taxpayer standing (see page 8 of decision). The Caldwell v. Caldwell district-court decision preceded the Supreme Court's Hein decision, so the similar ruling in Hein was not available. But the appeals court opinion in Caldwell v. Caldwell says -- without explanation -- that the taxpayer-standing issue was not appealed:
The district court held that Caldwell failed to make out taxpayer standing with respect to both the federal and state parties, an issue that is not appealed (page 6 of opinion)
Also, the appeals court decision, unlike the district court decision, does not mention the distinction between Congressional and executive-branch authorization of funding (Flast apparently uses the phrase "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" to describe executive-branch authorization). Anyway, federal taxpayer standing should probably not be an issue at all because I presume that the National Science Foundation -- which funded the website -- did not authorize webpages with religious messages. I will try to find out what happened to the taxpayer-standing issue in Caldwell v. Caldwell.