Andrew J. Pincus is representing the Wisconsin-based Freedom From Religion Foundation, and the laugh episodes only ramp up on his beat. Chief Justice Roberts opens with a query as to why taxpayers can't sue the court's marshal for standing up at each argument session and "saying 'God save the court.' " Alito asks Pincus to show him how striking down the administration's faith-based program would reduce anyone's tax rates. Then Scalia asks whether spending federal tax dollars on Air Force One violates the constitution if the president travels in it to attend a church service.
Justice Anthony Kennedy performs some feat of acrobatic reframing by claiming this is all a speech issue somehow. He does make it clear where he ultimately stands, however, when he suggests that it's "unduly intrusive" for the courts to "tell the president he can't talk to specific groups about better using their talents."
Pincus tries to lay out a clear test: Is the sum the government spends on religion identifiable and more than incidental? But Alito, Scalia, and Roberts just keep poking him with the crazy hypos. Which eventually leads Scalia (who is on some kind of comedic crack today) to wonder whether there would be standing for taxpayers to challenge a presidential directive that would only fund the bagels for evangelical prayer breakfasts. Cross talk. Laughter. Then Scalia, with only a hint of an accent, wonders if there is taxpayer standing because, after all, "What could be worse than not buying bagels for the Jewish prayer breakfast?"
Pincus sits down.
Now, I could watch Paul Clement do two-minute rebuttals until the cows come home. He's just that good. And this morning is no exception. By the time he sits down, he seems to have convinced a majority of the court that there's no harm in obliterating the taxpayer exception for religion cases because suits can still be filed on other grounds. And that if the court has to put a torch to Flast in order to preserve the constitutional well-being of the rest of the universe, well, hey. Some court watchers expect this to be a close case. It didn't look close today. But the enduring lesson of Hein may just be that the law is so confusing that it's unclear whether the constitutional violation is the hypothetical prayer breakfasts or just the hypothetical bagels.