U.S. Supreme Court Makes Silly Standing Doctrine Sillier Still

Arizona Christian School Tuition Org. v. Winn, 131 S. Ct. 1436 (2011). New Jersey law may occasionally be difficult to fathom, but at least New Jersey does not have the sometimes bizarre rules governing standing (that is, the right to sue at all) that apply in federal litigation. In New Jersey, the standing rules are liberal, and a party will be found to have standing if the party has a sufficient stake in the matter, and real adverseness. Our Supreme Court prefers that courts address cases on their merits rather than focusing on “technisms” about who can bring suit.

Federal standing law, in contrast, places much greater restrictions on who can sue. One general principle of federal standing law is that being a taxpayer does not, by itself, confer standing to challenge a government action. However, in Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court created an exception to that rule. The Flast exception has been limited to challenges brought under the Establishment Clause of the First Amendment to the United States Constitution. That clause forbids the government from establishing a religion.

In Winn, a 5-4 majority of the Court, speaking through Justice Kennedy, limited taxpayer standing under the Flast exception even further. Winn involved an attack on an Arizona statute that afforded a tax credit for contributions to school tuition organizations (“STOs”). “STOs use these contributions to provide scholarships to students attending private schools, many of which are religious.” Arizona taxpayers challenged that statute as violative of the Establishment Clause.

The majority drew a distinction between governmental expenditures, which can be the subject of Flast taxpayer standing, and tax credits (also known as “tax expenditures”), which the Court announced for the first time could not be. Justice Kennedy conceded that the decision “may seem in tension with earlier cases” that had involved challenges to tax expenditures, in which the Court had not found a standing problem. But because those cases had not mentioned standing, the majority found them no impediment to its newly-announced rule.

Justice Kagan, writing in dissent for herself and Justices Ginsburg, Breyer and Sotomayor, demolished the majority’s opinion. In a devastating analysis, Justice Kagan first showed that the majority’s distinction between government expenditures and tax credits was “arbitrary.” “Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy… Taxpayers experience the same injury for standing purposes whether government subsidization of religion takes the form of a cash grant or a tax measure.”

Justice Kagan then showed the fallacy of the majority’s attempt to distinguish the Court’s prior tax expenditure cases based on their silence about standing. It is settled law that “[t]his and every federal court has an independent obligation to consider standing, even when the parties do not call it into question.” Moreover, in several of the prior cases, a party or an amicus had expressly raised standing issues. Thus, the Court in those cases was obligated to address standing if it were an issue. Plainly, it was not. “The majority shrugs off these decisions because they did not discuss what was taken as obvious.”

This was Justice Kagan’s first dissenting opinion. It is an instant classic, and far more persuasive than the majority opinion.

Standing is often used by political conservatives to block at the threshold lawsuits perceived as politically undesirable. (An exception, where political liberals have invoked standing, is the currently pending California case involving gay marriage, where pro-gay marriage forces have objected to the standing of a California county that has sought to advocate the anti-gay marriage position). Justices Scalia and Thomas, concurring in Winn, advocated that Flast be “repudiated” as an “anomaly” in federal standing law. That opinion states frankly what conservatives wish to do about Flast, since it undercuts conservative judges’ ability to bar the courthouse door in one small segment of cases. It is safe to predict that the United States Supreme Court, as currently constituted, will eventually overrule Flast. For now, however, the Court maintained the pretense of honoring precedent, even as the majority cut at the marrow of Flast.