The Supreme Court and the Winn Decision: A Win for the Constitution

ObamaCare's abortion pill mandate may be the center of media attention now, but it's just the latest skirmish in a decades-long power struggle.  Another fight that conservatives should keep an eye on is the Supreme Court's move to derail the secular left's anti-Christian freight train.  Last April's Arizona Christian School Tuition Organization v. Winn took a step in that direction by debunking the "right" of taxpayer standing in establishment clause cases.

Winn challenged an Arizona law giving tax credits for donations to school tuition organizations (STOs) that use the contributions to provide scholarships to students attending private schools.  The plaintiffs argued that since the credits matched the donations, taxpayers taking the credits were paying their taxes to the STOs instead of the state.  And since some schools in the program were religious, that meant religious schools were being funded by the government in violation of the establishment clause.

There were two relevant issues in Winn.  The argument that donations are really taxes rests on the false premise that "all income is government property, even if it has not come into the tax collector's hands"[i].  Even worse, the plaintiffs claimed to have standing simply because they were taxpayers, and their inability to show injury to themselves put them crosswise with the cases-or-controversies rule of Article III.

After losing in both state and federal court, the plaintiffs appealed to the Ninth Circuit, which ruled in their favor.  The Supreme Court reversed, with Justice Kennedy admonishing the Ninth for acting as "a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them"[ii].

That's a very big deal.  Blocking establishment clause complaints by plaintiffs without standing strikes at the very heart of the anti-Christian left's extortion-by-lawsuit racket.  The fewer cases activist judges hear, the fewer political winners they get to pick.  And as Chief Justice Warren noted in Flast v. Cohen, the strong barrier against taxpayer standing prevents a taxpayer with an axe to grind from turning federal court into "a forum in which to air his generalized grievances about the conduct of government"[iii].

Warren's comment sounds almost conservative, but Flast lowered the barrier by carving out an exception in establishment clause cases.  Justice Kagan's Winn dissent -- which should be required reading for moderates who think they'll be able to live with Obama's abortion pill compromise -- tells us what happened next.  Her take on Flast is a sobering reminder that meeting progressives halfway often ends up being unconditional surrender.

For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause.  Beginning in Flast v. Cohen, and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one.  Not every suit has succeeded on the merits, or should have.  But every taxpayer-plaintiff has had her day in court to contest the government's financing of religious activity.[iv]

Since Flast, it seems, taxpayers have brought whatever suits they pleased, putting tremendous pressure on school boards and other government entities to erase all traces of Christianity from our public life.

That might be tolerable if the secularists were defending themselves against religious aggression -- but they're the ones spoiling for a fight.  And as Winn's amicus briefs tell us, the fight's not just over religion.  The plaintiffs' backers include the National School Boards Association, Arizona School Boards Association, American Association of School Administrators, National Education Association, and Arizona Education Association.  No one with a grain of sense believes that these politically connected advocates were just defending religious liberty; they were protecting their public education monopoly and union dues.

Small wonder Kagan's dissent reads like an abortion pill talking points memo.  According to her, Flast was not a principled exception to the Article III ban; it was a "guarantee of access to the judiciary."  Winn "devastates taxpayer standing" by "ravaging" Flast.  "No taxpayer will have standing to object" to government support for religion structured as a tax expenditure.  No matter how "blatantly the government may violate the Establishment Clause, taxpayers" will not have "access to the federal courts"[v].  Well, at least not taxpayers who haven't been injured.  Almost makes you wonder how Flast could have happened without Flast.

Kagan's fuming not because Winn overturned Flast.  Winn didn't.  She's furious because Kennedy applied Flast's "extracted and spent" test -- the test Warren invented to decide which taxpayers have standing -- and Winn's plaintiffs failed.

If Kagan's right to be mad, then Warren was running a con.  Flast held that when government takes money from taxpayers, then spends it improperly on religion, those taxpayers have been injured; but Kagan wants "every taxpayer plaintiff" to have standing, because that's the door she claims Flast actually opened.  Kennedy offends her by insisting that Flast's exception is narrow, as Warren said it was, because that would be a big step backwards for progressives.

There are lessons to be learned from this.  The first is that the progressives' claim that they're basing today's anti-Christian opinions on decades of consistent precedent is poppycock.  Kagan's reading of Flast is a radical departure from Warren's rhetoric, and it's only the tip of the iceberg.

The second is that if Kagan's gotten Flast wrong, she may have had help.  Warren suckered us with a game of three-card monte to make Article III disappear.  He listed four things that lie beyond the Court's jurisdiction: advisory opinions, moot questions, political questions, and complaints where the plaintiff lacks standing[vi].  Then he placed advisory opinions on a pedestal.

When the federal judicial power is invoked ... the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.[vii]

Warren wanted to make an absolute ban against taxpayer standing seem like overkill.  So he compared the "constitutional" ban on advisory opinions to the "conditional" ban on taxpayer standing, while conveniently ignoring moot and political questions.  Then he went out of his way to create the false impression that declaring taxpayer standing conditional divorces it from Article III.  According to Warren, the decisive factor with advisory opinions is the cases-or-controversies rule; with taxpayer standing it's the personal stake the plaintiff has in the outcome[viii].

Warren was dividing by zero, because the plaintiff's personal stake in the outcome is required under Article III.  If he has a stake, he's not just a taxpayer.  Warren was off-base for another reason: tough requirements for standing have nothing to do with advisory opinions, where the plaintiff is hypothetical; tough requirements for standing keep the Court from straying into political questions where the plaintiff is real.  That's why exploiting Flast to give taxpayers standing they don't deserve politicizes the Court.  Whether Warren intended it or not, progressives like Kagan read Flast as a pretext for violating the separation of powers.

Which brings us to lesson three: never trust a progressive with a test.  The "extracted and spent" test was invented to grant standing, not deny it -- to end-run Article III, not enforce it.  So when Kennedy used it to deny standing, he confronted Kagan with a terrible dilemma.  To rescue taxpayer standing, she had to declare Warren's test unworkable.

Flast focused narrowly on taxation and appropriation -- but in Winn, the government doesn't tax or spend.  And, according to Kagan, that's an option government always has[ix].  That means the test won't work, so she demotes it to a "novel distinction in standing law between appropriations and tax expenditures," and shifts the blame to Kennedy[x].

Several assumptions implied by Kagan's argument -- that there is no difference between private wealth and government revenue, that not taxing is a form of government spending, and that voluntary choices by private citizens violate the establishment clause -- are highly questionable.  And her conclusion is a stunning example of progressive disdain for constitutionality and common sense: because Warren's test is now useless, we should just ditch the ban on taxpayer standing once and for all, citing Flast as authority.

Justice Scalia has a better idea:

Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established.  I would repudiate that misguided decision and enforce the Constitution.[xi]


[i] 563 U.S. _______ (2011), slip opinion at 16.

[ii] Id., at 18.  For the basic requirements of standing see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), 560-561, references omitted: "[T]he irreducible constitutional minimum of standing contains three elements.  First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.  Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.  Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

[iii] 392 U.S. 83, 106.

[iv] 563 U.S. _______ (2011), Kagan, J, dissenting, slip opinion at 1-2, emphasis added, references omitted.

[v] Id., at 23.

[vi] 392 U.S. 83, 95.

[vii] Id., at 96.

[viii] See 392 U.S. 83, 100: "A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs."  And 392 U.S. 83, 106: "The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.  Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review."

[ix] See 563 U.S. _______ (2011), Kagan, J, dissenting, slip opinion at 23.  "The government, after all, often uses tax expenditures to subsidize favored persons and activities.  Still more, the government almost always has this option.  Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a tax break tomorrow." (Emphasis in original.)

[x] Id., at 2.  "These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation.  A tax credit, the Court asserts, does not injure objecting taxpayers, because it "does not extract and spend their funds in service of an establishment."  This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent.

[xi] 563 U.S. _______ (2011), Scalia, J, concurring, slip opinion at 1.  Since Thomas joined Scalia's concurrence, and Breyer, Ginsburg, and Sotomayor joined Kagan's dissent, at least six justices are now on record as believing the "extracted and spent" test is worthless.

ObamaCare's abortion pill mandate may be the center of media attention now, but it's just the latest skirmish in a decades-long power struggle.  Another fight that conservatives should keep an eye on is the Supreme Court's move to derail the secular left's anti-Christian freight train.  Last April's Arizona Christian School Tuition Organization v. Winn took a step in that direction by debunking the "right" of taxpayer standing in establishment clause cases.

Winn challenged an Arizona law giving tax credits for donations to school tuition organizations (STOs) that use the contributions to provide scholarships to students attending private schools.  The plaintiffs argued that since the credits matched the donations, taxpayers taking the credits were paying their taxes to the STOs instead of the state.  And since some schools in the program were religious, that meant religious schools were being funded by the government in violation of the establishment clause.

There were two relevant issues in Winn.  The argument that donations are really taxes rests on the false premise that "all income is government property, even if it has not come into the tax collector's hands"[i].  Even worse, the plaintiffs claimed to have standing simply because they were taxpayers, and their inability to show injury to themselves put them crosswise with the cases-or-controversies rule of Article III.

After losing in both state and federal court, the plaintiffs appealed to the Ninth Circuit, which ruled in their favor.  The Supreme Court reversed, with Justice Kennedy admonishing the Ninth for acting as "a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them"[ii].

That's a very big deal.  Blocking establishment clause complaints by plaintiffs without standing strikes at the very heart of the anti-Christian left's extortion-by-lawsuit racket.  The fewer cases activist judges hear, the fewer political winners they get to pick.  And as Chief Justice Warren noted in Flast v. Cohen, the strong barrier against taxpayer standing prevents a taxpayer with an axe to grind from turning federal court into "a forum in which to air his generalized grievances about the conduct of government"[iii].

Warren's comment sounds almost conservative, but Flast lowered the barrier by carving out an exception in establishment clause cases.  Justice Kagan's Winn dissent -- which should be required reading for moderates who think they'll be able to live with Obama's abortion pill compromise -- tells us what happened next.  Her take on Flast is a sobering reminder that meeting progressives halfway often ends up being unconditional surrender.

For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause.  Beginning in Flast v. Cohen, and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one.  Not every suit has succeeded on the merits, or should have.  But every taxpayer-plaintiff has had her day in court to contest the government's financing of religious activity.[iv]

Since Flast, it seems, taxpayers have brought whatever suits they pleased, putting tremendous pressure on school boards and other government entities to erase all traces of Christianity from our public life.

That might be tolerable if the secularists were defending themselves against religious aggression -- but they're the ones spoiling for a fight.  And as Winn's amicus briefs tell us, the fight's not just over religion.  The plaintiffs' backers include the National School Boards Association, Arizona School Boards Association, American Association of School Administrators, National Education Association, and Arizona Education Association.  No one with a grain of sense believes that these politically connected advocates were just defending religious liberty; they were protecting their public education monopoly and union dues.

Small wonder Kagan's dissent reads like an abortion pill talking points memo.  According to her, Flast was not a principled exception to the Article III ban; it was a "guarantee of access to the judiciary."  Winn "devastates taxpayer standing" by "ravaging" Flast.  "No taxpayer will have standing to object" to government support for religion structured as a tax expenditure.  No matter how "blatantly the government may violate the Establishment Clause, taxpayers" will not have "access to the federal courts"[v].  Well, at least not taxpayers who haven't been injured.  Almost makes you wonder how Flast could have happened without Flast.

Kagan's fuming not because Winn overturned Flast.  Winn didn't.  She's furious because Kennedy applied Flast's "extracted and spent" test -- the test Warren invented to decide which taxpayers have standing -- and Winn's plaintiffs failed.

If Kagan's right to be mad, then Warren was running a con.  Flast held that when government takes money from taxpayers, then spends it improperly on religion, those taxpayers have been injured; but Kagan wants "every taxpayer plaintiff" to have standing, because that's the door she claims Flast actually opened.  Kennedy offends her by insisting that Flast's exception is narrow, as Warren said it was, because that would be a big step backwards for progressives.

There are lessons to be learned from this.  The first is that the progressives' claim that they're basing today's anti-Christian opinions on decades of consistent precedent is poppycock.  Kagan's reading of Flast is a radical departure from Warren's rhetoric, and it's only the tip of the iceberg.

The second is that if Kagan's gotten Flast wrong, she may have had help.  Warren suckered us with a game of three-card monte to make Article III disappear.  He listed four things that lie beyond the Court's jurisdiction: advisory opinions, moot questions, political questions, and complaints where the plaintiff lacks standing[vi].  Then he placed advisory opinions on a pedestal.

When the federal judicial power is invoked ... the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.[vii]

Warren wanted to make an absolute ban against taxpayer standing seem like overkill.  So he compared the "constitutional" ban on advisory opinions to the "conditional" ban on taxpayer standing, while conveniently ignoring moot and political questions.  Then he went out of his way to create the false impression that declaring taxpayer standing conditional divorces it from Article III.  According to Warren, the decisive factor with advisory opinions is the cases-or-controversies rule; with taxpayer standing it's the personal stake the plaintiff has in the outcome[viii].

Warren was dividing by zero, because the plaintiff's personal stake in the outcome is required under Article III.  If he has a stake, he's not just a taxpayer.  Warren was off-base for another reason: tough requirements for standing have nothing to do with advisory opinions, where the plaintiff is hypothetical; tough requirements for standing keep the Court from straying into political questions where the plaintiff is real.  That's why exploiting Flast to give taxpayers standing they don't deserve politicizes the Court.  Whether Warren intended it or not, progressives like Kagan read Flast as a pretext for violating the separation of powers.

Which brings us to lesson three: never trust a progressive with a test.  The "extracted and spent" test was invented to grant standing, not deny it -- to end-run Article III, not enforce it.  So when Kennedy used it to deny standing, he confronted Kagan with a terrible dilemma.  To rescue taxpayer standing, she had to declare Warren's test unworkable.

Flast focused narrowly on taxation and appropriation -- but in Winn, the government doesn't tax or spend.  And, according to Kagan, that's an option government always has[ix].  That means the test won't work, so she demotes it to a "novel distinction in standing law between appropriations and tax expenditures," and shifts the blame to Kennedy[x].

Several assumptions implied by Kagan's argument -- that there is no difference between private wealth and government revenue, that not taxing is a form of government spending, and that voluntary choices by private citizens violate the establishment clause -- are highly questionable.  And her conclusion is a stunning example of progressive disdain for constitutionality and common sense: because Warren's test is now useless, we should just ditch the ban on taxpayer standing once and for all, citing Flast as authority.

Justice Scalia has a better idea:

Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established.  I would repudiate that misguided decision and enforce the Constitution.[xi]


[i] 563 U.S. _______ (2011), slip opinion at 16.

[ii] Id., at 18.  For the basic requirements of standing see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), 560-561, references omitted: "[T]he irreducible constitutional minimum of standing contains three elements.  First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.  Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.  Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

[iii] 392 U.S. 83, 106.

[iv] 563 U.S. _______ (2011), Kagan, J, dissenting, slip opinion at 1-2, emphasis added, references omitted.

[v] Id., at 23.

[vi] 392 U.S. 83, 95.

[vii] Id., at 96.

[viii] See 392 U.S. 83, 100: "A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs."  And 392 U.S. 83, 106: "The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.  Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review."

[ix] See 563 U.S. _______ (2011), Kagan, J, dissenting, slip opinion at 23.  "The government, after all, often uses tax expenditures to subsidize favored persons and activities.  Still more, the government almost always has this option.  Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a tax break tomorrow." (Emphasis in original.)

[x] Id., at 2.  "These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation.  A tax credit, the Court asserts, does not injure objecting taxpayers, because it "does not extract and spend their funds in service of an establishment."  This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent.

[xi] 563 U.S. _______ (2011), Scalia, J, concurring, slip opinion at 1.  Since Thomas joined Scalia's concurrence, and Breyer, Ginsburg, and Sotomayor joined Kagan's dissent, at least six justices are now on record as believing the "extracted and spent" test is worthless.

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