A Supreme Court Conversation

Supreme Oracles of Constitutional Meaning—Always a Bad Idea
An email conversation about the news of the day.
June 26 2007 2:27 PM

A Supreme Court Conversation


Dear Dahlia,

With all respect, I cannot for the life of me understand why liberals would object to yesterday's holding in Hein. The case raises a profoundly important question about the role of the judiciary in our constitutional system. Is it the role of the Supreme Court to proclaim the "true meaning" of every disputed provision of the Constitution?  Or is the court's job the more modest one of resolving legal disputes among parties? Supreme Oracles of Constitutional Meaning or Legal Dispute Resolvers?  


The Hein plaintiffs allege that, among other sins, President Bush and various White House officials have used the faith-based initiative to promote religious community groups over their secular counterparts. The White House, they say, uses general executive branch appropriations to organize conferences and give speeches that single out "faith-based" organizations as "particularly worthy of federal funding."

The folks who brought the law suit—the Freedom From Religion Foundation—don't like the faith-based program. I don't know a lot about it, but I don't think I like it, either. It seems to be getting politics and government and religion mixed together in ways that would surely have troubled the framers of the First Amendment. But there is another important issue at stake here: Does the judiciary have a monopoly on the interpretation of the Constitution? 

The problem—what lawyers call the "standing" issue—is that the challengers who brought this case do not themselves stand to gain or lose anything personally by this litigation. Although the group includes people who pay federal taxes, no individual's tax bill will go up or down depending on whether they win or lose this lawsuit. Not by a dollar, not by a penny. Their constitutional views would be vindicated if the court declared that the program violated the First Amendment. But believing that some government official is violating the Constitution has never been the kind of "injury" that gave rise to a right to bring suit in court.

Not until, that is, the Supreme Court, under Chief Justice Earl Warren, decided Flast v. Cohen in 1968. At issue was federal funding of educational materials that could be used in religious and sectarian schools. The challengers were "taxpayers" whose tax bills would in no way be affected by the expenditures in question. The court found it unthinkable that there could be major constitutional question that the court could never hear just because there was nobody who had a right to sue.

Flast turned the great 1804 case of Marbury v. Madison almost literally upside down.  Chief Justice John Marshall's opinion in Marbury said essentially that courts have a job to do. That job is to decide disputes among litigants. To decide those lawsuits, the court has to apply the law. Because the Constitution is law—real law that litigants can invoke in court—the court must decide what it means in order to do its job. Flast flipped that reasoning. The court acted as if it was the anointed priesthood whose real job was to proclaim the meaning of the Constitution. If there is no real lawsuit raising a constitutional challenge, Flast suggests, the court has to make one up. 

Flast was a very bad decision. It both reflected and contributed to the view that the court is above everyone else when it comes to interpreting the Constitution. Five current justices clearly think it was wrong (Roberts, Scalia, Kennedy, Thomas, and Alito). But the new arrivals, Roberts and Alito, stopped short of overruling it out of a stated respect for stare decisis (the principle that previous holdings of the court should usually stand).  Instead they accepted the solicitor general's suggestion that there is a difference between the expenditure of congressionally earmarked money, which gave rise to standing in Flast,and general appropriations by the executive branch. But nobody, I mean nobody, can offer a really convincing explanation of why that difference (and a couple of other distinctions understandable only to somebody who is both a Jesuitical and a Talmudic scholar, as well as president of a law review) matters. Flast and Hein present the same issue: Either the court should limit itself to deciding real lawsuits, or it should proclaim upon the constitutional rightness or wrongness of governmental actions whether or not there is such a suit. I would choose the former and overrule Flast.

Yesterday's dissenting opinion by Justice Souter, joined by Justices Stevens, Ginsberg, and Breyer is a really halfhearted effort. He makes the obvious point that this case is indistinguishable from Flast, but he never really defends Flast itself. Why do they still cling to Flast? Why is it that liberals want to expand the authority of the court beyond lawsuits in an era in which the courts are likely to produce results they don't like?  I have been critical of Flast all along, under courts liberal, moderate, and conservative; I'm just surprised that position is still considered illiberal.

Is there any doubt how this court would have decided the merits of the challenge to the faith-based initiative if the justices had reached out to hear it? Why would those who are concerned about the Bush administration's faith-based spending think it a good idea to have the Supreme Court confer its constitutional imprimatur upon it? Placing some constitutional issues beyond the court's jurisdiction serves as a good reminder that the court is just one institution operating under the Constitution.


Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



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