Should the courts save taxpayer standing? Interpreting Hein v. Freedom from religion Foundation narrowly through the lens of judicial-branch spending.

• Author: Shapiro, Akiva

1. INTRODUCTION

   Over the course of the 2006-01 Term, the Supreme Court's first full year with Chief Justice Roberts at the helm, the Court handed down a series of five-four decisions on a broad range of politically divisive issues. (1) One of the last of these decisions, Hein v. Freedom From Religion Foundation, Inc., (2) turned on a technical question of taxpayer standing. Justice Alito (writing for a plurality) interpreted Flast v. Cohen, the classic case that opened the door to taxpayer standing in cases of government spending in violation of the Establishment Clause, to have upheld taxpayer standing only because there was a "specific congressional enactment" that "expressly authorized or mandated" the challenged expenditure. (3) As the executive branch spending at issue in Hein was from general Congressional appropriations, and the decision to spend funds for arguably religious purposes was an act of executive discretion, the plurality concluded that Flast did not apply; having reached this conclusion, the plurality declined to "extend" Flast, and held that the respondents lacked standing. (4)

   Despite the technical nature of the taxpayer-standing holding, the decision generated an outpouring of negative press, as the case implicated deep church-state concerns. The criticisms came in two distinct forms. First, critics objected to Hein on normative grounds, arguing that it effectively insulated large swaths of government spending from Establishment Clause challenge, and thereby threatened to undermine judicial enforcement of the Clause. (5) Second, legal commentators criticized--in the harshest of terms--the logic of the plurality opinion, which made a sharp distinction between Congressional spending that supported standing in Flast and Executive Branch spending of general Congressional appropriations that did not in Hein. (6) Noting that the injury--spending a taxpayer's money for religious purposes--was identical in both cases, these critics blasted the plurality for its "utterly meaningless" and "intellectually ... indefensible" distinction. (7)

   But by explicitly refusing to discuss the applicability of the decision--and the viability of Flast--outside the specific Executive Branch spending setting of the case, (8) the plurality opinion left open many important questions with which the lower courts have already begun to grapple. First and foremost is whether and how Hein applies in taxpayer spending cases outside the federal Executive Branch. After Hein, does the simple collection and expenditure of funds in violation of the Establishment Clause by Congress or a state still give rise to taxpayer standing, as long as the spending is not limited to the federal Executive Branch? Or does the Hein pronouncement that taxpayer standing only lies where there is a "specific [legislative] enactment" that "expressly authorize[s] or mandate[s]" the challenged expenditure apply even in federal non-Executive cases and in cases implicating state and municipal taxpayer standing?

   This article raises these questions, and suggests--through the lens of Judicial Branch spending--that the approach taken by many courts thus far is deeply problematic. (9) In a host of cases, the broader interpretation of Hein already seems to be taking hold, as many courts have applied the Alito plurality directly (or as directly as possible, at any rate) in a number of non-Executive Branch taxpayer spending cases, despite the executive-specific separation-of-powers and administrability concerns at the heart of the opinion. (10) Based on this developing trend, two leading scholars of the Religion Clauses--in the most thorough examination of the implications of Hein since the decision was handed down--see the threat of Hein's narrowing of taxpayer standing bleeding into standing for Establishment Clause violations generally, a development that would undermine citizens' access to the courts to contest Establishment Clause violations at every level and branch of government. (11) At the same time, a significant minority of courts and judges have questioned the applicability of Hein outside its federal executive-specific context.

   Against this backdrop of confusion and disagreement, there are at least two reasons that lower courts should stop the bleeding. First, a full Marks (12) analysis, applied properly, leads to the conclusion that there is no precedent-setting opinion in Hein, or at the very least that the narrower Kennedy concurrence is controlling. (13) Under either conclusion, courts are free to apply the pre-Hein standard in spending cases that involve governmental entities outside the federal Executive Branch. (14) Second, because Justice Alito's plurality opinion is best read as a decision primarily concerned with Executive Branch independence from the judiciary (and executive-specific prudential administrability), rather than the absence of irreducible Article III injury in fact, lower courts should adopt an interpretation of the Alito plurality that remains loyal to the opinion by limiting the effect of the decision on taxpayer spending cases outside the realm of federal executive spending. (15)

   The rest of the article proceeds as follows: Part II provides--for the first time--a taxonomy and systematic examination of judicial violations of the Establishment Clause, a little-analyzed area of Establishment Clause jurisprudence. In the course of surveying and discussing the primary categories of judicial violations of the Establishment Clause, it highlights those violations that might give rise to taxpayer spending.

   Part III turns to Hein itself: Section A discusses the factual background of the case; section B presents the lower court decisions in the case; section C discusses the four opinions in the Supreme Court decision of the case; and section D analyzes the four opinions in light of the Marks doctrine, and demonstrates that under Marks, there is either no binding opinion in Hein, or the controlling opinion is the Executive Branch-specific Kennedy concurrence.

   Part IV turns to the interpretation and application of Justice Alito's plurality opinion, in light of the fact that courts have almost uniformly assumed that it is controlling. Section A presents the prevailing interpretation of the plurality opinion by the courts; it shows that courts are already divided on whether a straightforward application of the plurality opinion to taxpayer spending cases outside the federal Executive Branch is feasible, and argues that such an approach leads to results that cannot be justified by the opinion's language and logic. Section B argues that the plurality opinion's denial of taxpayer standing, read properly, is in fact based in separation of powers and prudential standing concerns particular to the Executive Branch, rather than the absence of Article III injury. Section C applies this reading to judicial spending cases, and demonstrates that Hein does not limit taxpayer standing in judicial spending cases. Finally, Section D discusses major critiques of my reading of Justice Alito's plurality opinion.

   The Conclusion then offers some preliminary thoughts on the implications of this interpretation of Hein for other taxpayer spending cases outside the federal executive spending context, and suggests that lower courts can and should save taxpayer standing (and make sense of Hein) either by applying the Marks doctrine to limit the precedential effect of Hein, or by interpreting the Alito plurality opinion in its executive-specific context.

2. JUDICIAL VIOLATIONS OF THE ESTABLISHMENT CLAUSE

   The classic description of the meaning of the First Amendment's Establishment Clause is found in Everson v. Board of Education: (16)

   The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. (17) The Establishment Clause has been understood to apply to the activities of all levels (18) and branches of government, (19) including the judiciary. (20) However, despite a fair number of cases that apply the Establishment Clause to judicial acts, there is very little scholarship that focuses on judicial violations of the Clause, and no comprehensive survey of such violations. (21)

   In this Part, I provide just such a survey and taxonomy of judicial violations of the Establishment Clause, with special emphasis on violations that could give rise to taxpayer standing. (22) Section A discusses violations by judges acting outside the scope of their strictly judicial duties. A thorough investigation of the case law reveals that this type of violation generally arises in two contexts: judges arranging for Ten Commandments displays to be placed in a courtroom or courthouse, (23) and judges opening court with a prayer. (24) Section B discusses violations by judges acting within the scope of their strictly judicial duties; in particular, it focuses on judges issuing opinions and making sentencing decisions on religious grounds. (25)

   1. Conduct of Judges Acting Outside the Scope of Their Judicial Duties

      1. Ten Commandments Displays

         Courts have, with some regularity, criticized individual judges on Establishment Clause grounds for setting up Ten Commandments displays in their courtrooms or courthouses. (26) In a recent case, then-Alabama Supreme Court Chief Justice Roy Moore arranged for a massive granite monument bearing the Ten Commandments to be placed in the Alabama courthouse in which his court sat. He was sued personally in federal district court under the Establishment Clause.

         The district court held that this placement of the Ten Commandments violated the Establishment Clause. The Eleventh Circuit affirmed and discussed...