One of the trademarks of the Roberts Court has been to find ways around precedents without explicitly overruling them. One area where this has been particularly evident is with respect to the ability of taxpayers to bring suits alleging violations of the establishment clause of the First Amendment. In the American system of constitutional law, federal courts can only hear cases if a litigant establishes "standing," that is, enough personal interest in the case that there is a legitimate "case or controversy" for the courts to revolve under Article III.
While taxpayers generally don't have standing to bring suits based on their status as taxpayers, the landmark Flast v. Cohen decision created an exception, allowing taxpayers to sue to prevent governments from illegally subsidizing religion in some circumstances. In 2007, the Roberts Court all but overruled Flast, arguing that because the program being challenged involved executive rather than legislative subsidies, taxpayers couldn't challenge the program. Precisely because the distinction was so specious, it's not clear under what circumstances the Roberts Court would find taxpayers have standing.
Today, the Court continues this trend. In yet another distinction without a meaningful difference, the court's five Republican appointees held (through Kennedy) that because an Arizona religious subsidy was a tax credit rather than a direct expenditure, Arizona taxpayers lacked the standing to challenge it. In her first major dissent, Kagan notes the obvious flaws in this reasoning:
Today's decision devastates taxpayer standing in Establishment Clause cases. The government, after all, often uses tax expenditures to subsidize favored persons and activities. Still more, the government almost always has this option. Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a tax break tomorrow. The Court's opinion thus offers a roadmap—more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts.
And by ravaging Flast in this way, today's decision damages one of this Nation's defining constitutional commitments.
Among other things, the case is an object lesson in the general vacuity of "minimalism." It would be much more honest for the Court to just overturn Flast v. Cohen outright rather than bleed it to death with this ridiculous hair-splitting.
