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A Supreme Court Conversation

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from: Walter Dellinger
to: Dahlia Lithwick

Supreme Oracles of Constitutional Meaning—Always a Bad Idea

Posted Tuesday, June 26, 2007, at 2:27 PM ET

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.

Regards,
Walter

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick

Supreme Oracles of Constitutional Meaning—Always a Bad Idea

Posted Tuesday, June 26, 2007, at 2:27 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
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Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

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