The Maximalist Supreme Court

During the confirmation hearings for Chief Justice John Roberts, highly influential University of Chicago legal scholar Cass Sunstein argued that Roberts was very different from his eminent conservative colleagues: "Some conservative judges are minimalists, others fundamentalists, and there is a huge difference between the types." Roberts was a minimalist, Sunstein explained, disdainful of broad rulings and skeptical about overruling precedents. For this reason, Sunstein and a number of other liberal law professors said Roberts was preferable to a more fundamentalist conservative like Clarence Thomas or Antonin Scalia.

But last week's decision in Arizona Christian School v. Winn -- in which the Court ruled that tax credits for "scholarship funds" at parochial schools did not violate the First Amendment's separation of church and state -- is the latest illustration that the supposed difference between minimalists like Roberts and Samuel Alito and fundamentalists like Scalia and Thomas is entirely cosmetic. Roberts and Alito may use more cautious language and be more reluctant to explicitly overrule precedents, but they generally reach the same conclusion as their fundamentalist brethren who run roughshod over the Constitution to get there. Most important, however, the substantive implications of the ruling are anything but minimalist.

Arizona Christian School v. Winn was formally minimalist in two respects. First, the majority decided the case on procedural grounds instead of addressing the First Amendment claim. Second, the Court claimed it was applying rather than overruling a Warren Court precedent that gives taxpayers broad rights to sue in First Amendment cases.

Justice Anthony Kennedy, speaking for a bare majority consisting of the Court's five Republican appointees, dismissed the suit brought by the Arizona taxpayers because they lacked what is known as standing. In the American legal system, courts can only resolve issues when there is a case or controversy, and this requires that plaintiffs show some personal stake in the suit's outcome. For example, the NAACP cannot challenge segregation in the abstract; suits have to be brought by students in segregated school districts. Similarly, attorneys Ted Olsen and David Boies are fighting California's gay-marriage ban on behalf of two same-sex couples -- not just because the law is unjust.

Normally, merely being a taxpayer is not enough to give you standing -- you'd be suing on behalf of the whole country. But in a landmark 1968 ruling, Flast v. Cohen, the Court made an exception for some First Amendment suits. In some cases, the Court argued, being a taxpayer was enough to have standing. The ruling makes sense -- how else could anyone challenge the constitutionality of subsidies to religious organizations?

In this case, however, the Court found that the taxpayers did not qualify for standing under Flast. According to Justice Kennedy, the key difference was that the religious subsidy in this case was a tax credit rather than a direct appropriation of funds and hence did not directly affect the taxpayers in question. As Elena Kagan -- making an impressive debut as a dissenter -- noted, this hairsplitting makes little sense:

This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective -- to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

This is, of course, not the first time that the Roberts Court has relied on specious distinctions to deny taxpayers standing. In 2007, Alito, Roberts, and Kennedy ruled that taxpayers did not have standing to challenge a religious subsidy, because the subsidy was granted by the executive branch rather than by the legislative branch. This distinction was even more illogical -- how does an illegal subsidy harm a taxpayer any less if the decision was made by the executive branch? Strangely enough, it was the fundamentalist conservatives on the Court who called out the distinction for being spurious. Justice Scalia noted that the distinction was "utterly meaningless" and invited "demonstrably absurd results." The Court, Scalia argued, should either straightforwardly apply Flast or overrule it explicitly.

This split may seem to vindicate the distinction between minimalist and fundamentalist conservative justices, but here's the point: In the end, all five conservative justices agreed on the merits and reached the same conclusion. In other words, failing to explicitly overrule a precedent doesn't mean that it will actually be applied. To plaintiffs in the Arizona case, it makes very little difference whether they are denied standing because Flast was overruled or because the Court concocted an absurd distinction. In the end, they lose.

It's worth noting that even if they don't make the ideological splash that overturning a case does, these allegedly procedural rulings are really substantively conservative. The justices in last week's ruling were not relying on a general principle that strictly adjudicates who has standing. The Court's conservatives interpret standing very narrowly when it comes to the establishment clause and environmental regulation but are much more generous in affirmative-action cases, in which they have granted standing even to individuals no longer affected by allegedly discriminatory admissions policies (white people). The Court's conservatives favor strict definitions of standing only when the litigants in question bring claims they substantively disapprove of.

For the most part, then, the minimalism of the new chief justice is a fraud. There is very little substantive distinction between the minimalist Roberts/Alito wing and the fundamentalist Scalia/Thomas wing. They all end up in the same place; it's just that the latter are a little more honest about it.

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