A Supreme Court Conversation
Hey. No fair unloading Marbury v. Madison onto the breakfast table. That's like Alberto Gonzales saying he's sticking around to "help the children." What the heck am I supposed to say to that??
I certainly take your pragmatic point that the court's liberals may want to think long and hard before fighting to expand the scope of judicial review just now. But I am not sure that Flast v. Cohen is so readily dismissed as a constitutional disaster: a naked judicial power-grab that finds the constitutional wrongs first and only then invents a theory of standing to advance it.
Flast is not about using taxpayer standing to right just any perceived constitutional wrongs. It's been limited to the narrow class of cases in which the government violates the Establishment Clause, by forcing some form of state religion onto the people. So, the real question is the one you've, with respect, sidestepped: Is there something about Establishment Clause violations that's so different—so egregious—that my seeing even one penny of my tax dollars go toward some state church might legitimately be the basis for a lawsuit?
We may differ as to whether religion is different, but we could probably at least agree as to why some might think it so. The answer is right here in Justice Souter's dissent. And it was amplified by Justice Breyer's concerns at oral argument. Forced religion makes Americans nuts. It always has. Nuts. Going back to James Madison's concern about forcing citizens to "contribute three pence only of his property for the support of any one establishment" of religion, some of the framers could be uniquely—and perhaps even pathologically—sensitive to extracting funds from citizens for the support of religions to which their consciences objected. Justice Scalia, in his dissent in Hein, dismisses this as some kind of free-floating "psychic injury" (as distinguished from what he terms "wallet injury"). I have to tell you that this dismissal is quite amazing. Justice Scalia thinks that someone's heartfelt religious objection to subsidizing a religion that he or she finds alienating is merely a fleeting bout of "mental displeasure"? Are the visceral and vociferous religious convictions of Americans really so trivial? Or is it just "mental displeasure" when it happens to atheists, who don't like religion at all?
I am not sure myself what to make of the religious exception to taxpayer standing in Flast. Some of the court's jabbering on about "justiciability" in that opinion is pretty alarming. Perhaps you're right and it's just a nutty Warren Court judicial contrivance whose time has come. But if the average American's continuing tendency to go utterly bonkers over matters of religion signals anything to me, it's that the framers may have been right to foresee that as a constitutional matter, forcing religion down someone's throat really is a different kind of affront than other kinds of government action.
Speaking of Americans, I have to cop here to two important facts: 1) I am a Canadian; and 2) I am a Canadian born long after the Supreme Court ordered schools in the United States desegregated in Brown v. Board of Education. If our mutual suspicions are right and the legacy of Brown is about to become highly unsettled on Thursday, I wonder if I can prevail upon you to remind me what life was like before Brown?
Dahlia Lithwick writes about the courts and the law for Slate.