A standing symposium: Simon's take

Reacting to my comments on the Supreme Court's decision Monday in Hein -- which refused to expand (or if you'd prefer, carry to its logical endpoint) the Flast exception to taxpayer standing to cover actions undertaken purely by executive actors -- both my co-blogger Pat (here and here) and our occasional commenter Marghlar (here - we're glad to see him back) express concern that my position on taxpayer standing would very likely have the consequence of precluding all lawsuits vindicating establishment rights, because without taxpayer standing, no one would be sufficiently injured.

Pat and I have occasionally toyed with the idea of doing a post-level exchange of the kind similar to the Becker-Posner Blog; this appears to be the opportune day and subject. Since I'm the one who's wrong - as Pat and Marghlar will doubtless explain in their posts - I'm going to go first. Marghlar's reply appears here; Pat's post can be found here.

The basic point I'd make is that Pat and Marghlar seem to turn the standing requirement on its head: the goal of the standing inquiry is not to discover who has standing to litigate clause X, it's a case-specific inquiry that determines if this "litigant is entitled to have a federal court resolve his grievance." Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (emphasis added). "Constitutional cases serve two broad goals: they provide relief to those deprived of their rights, and they announce rules of law. They speak to the parties to the case and they speak to the rest of society. Cases are disputes that the courts must address, but they are also occasions for saying what the law is." Ann Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. Rev. 929, 938. Notice the order: they are also occasions for saying what the law is, but they must first and foremost speak to the case at hand, and there cannot be a case without litigants possessing standing. At least, "federal courts ... can only expound the law in the context of a case. They must have a concrete setting – a system of facts including injured plaintiffs, injury causing defendants, and a real need for a remedy - to have a sufficient occasion for saying what the law is." Id. at 932 (emphasis added). Judicial review does operate to enforce the Constitution's guarantees, but that is not the basis for its existence and authority, and it has limits: it can only perform that enforcement role in the context of redressing the injuries of litigants in concrete cases, and those litigants must have standing.

How do we determine if a litigant has standing? The inquiry doesn't rest on the argument that (I think) Pat and Marghlar are advancing, which as I read them comes from this chain of reasoning:

Major premise: every clause of the Constitution (at least the important bits, here the establishment clause) must be subject to judicial review;
Minor premise: to initiate judicial review, you need a case, and to have a case, you need litigants, who in turn need to have standing;
Conclusion: someone has to have standing to challenge a potential establishment clause violation, ergo, if we can't think of anyone who would have standing within the usual framework, ipso facto an exception to the usual framework (e.g. an expansion of the Flast exception) is warranted.

I take issue with three aspects of that argument, and while I apologize for any repetition, they bear separate discussion. I also fundamentally disagree, at root, with the premise that courts should structure and manipulate threshold doctrines based on the perceived merits of the case, at least to the extent those threshold doctrines are rooted in extrajudicial sources (both constitutional, as is at issue here, and statutory, cf. Bowles v. Russell, discussed here).

The first is, what are the "important" parts of the Constitution? I'd say all of them are, and it's far from clear to me that the establishment clause is outstandingly so. Why are we so especially concerned to ensure someone has standing to enforce the establishment clause, yet less solicitous of someone who can challenge, for example, Presidential conduct of a war in the absence of a declaration of such by Congress? That, surely, injures a taxpayer's wallet (and in many cases, conscience) to a greater extent than does a prayer breakfast in the Oval Office. Or to lift a non-constitutional example from recent blogging, a summary execution in violation of the Convention on Torture. Let's not even get started on the guarantee clause (compare Erwin Chemerinsky, Cases Under the Guarantee Clause Should be Justiciable, 65 U. Colo. L. Rev. 849 (1994), with Ann Althouse, Time for the Federal Courts to Enforce the Guarantee Clause? A Response to Professor Chemerinsky, 65 U. Colo. L. Rev. 881 (1994)). The point is that there are many constitutional clauses that are important where it's hard to summon to mind a litigant who would meet ordinary standing requirements.

David Strass puts the point nicely:

I have never fully been able to rationalize the Flast exception: What makes the Establishment Clause so special that it warrants a special exception to the Court's standing doctrine? How is it different, let's say, than Congress earmarking funds expressly for racially discriminatory private schools? Most taxpayers would be just as angry and just as "harmed" if Congress gave money to racially discriminatory schools (perhaps even more so) as they would be if Congress expressly appropriated funds to religious schools. Yet a taxpayer would have no standing in the former case and inexplicably would have standing to sue in the latter scenario.

David adds, directly addressing the point of this post:

I suppose one could argue that it is hard to find a plaintiff that has standing to allege a violation of the Establishment Clause, at least where government spending is concerned, but there are at least three problems with that rationale: first, the Court has consistently stated that standing should not be found simply because there is no conceivable plaintiff that has standing; second, where government spending is at issue, it is equally difficult to find a plaintiff with a sufficient injury regardless of the underlying constitutional right at issue; and third, as Justice Alito acknowledged, in many Establishment Clause cases there are potentially other plaintiffs who may have a more direct injury than a taxpayer.

Secondly and more importantly is the essential backwardness of such an approach to the purpose of standing and the inquiry to discover if litigants posses it.

My esteemed friends seem to urge (and I apologize to them in advance if I've misapprehended their remarks) an approach to standing wherein it's more important that someone - anyone - has standing to litigate any constitutional claim than that a particular litigant have standing to litigate a particular claim. I cannot agree. This idea seems a throwback to the Warren Court's conception of standing as an optional extra, wherein standing (and by extension, the adversarial system itself) serve the purely utilitarian purpose of advising the inquisitorial court: Have the plaintiffs "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions," as Justice Brennan derisively described the "gist of the question of standing," Baker v. Carr, 369 U.S. 186, 204 (1962) (emphasis added)? Yes? Great! Carry on.

To the contrary, however: "Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As Judge Sykes has warned, "Constitutional litigation is legitimate only where there is a real injury and a legal remedy available to redress it. ... [Standing is] not merely a troublesome hurdle to be overcome if possible so as to reach the merits of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers." Winkler v. Gates, 481 F. 3d 977, 993 (7th Cir. 2007) (Sykes, J., concurring). "[T]he Constitution's central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts," Lujan, supra, at 559-60, and "the standing requirements of Article III's case-or-controversy limitation on federal judicial power[] [are] a fundamental feature in the Constitution's separation of powers which enforces that understanding." Winkler, supra, at 988 (Sykes, J., concurring).

Standing preserves liberty by reinforcing the separation of powers; to say that its enforcement sometimes prevents the adjudication of legitimate constitutional questions is no more an indictment of standing than it is an indictment of the Fourth Amendment that a restriction designed to protect personal liberty from tyrannical government sometimes prevents the effective prosecution of criminals. The Constitution embodies the notion that it's sometimes necessary to provide more liberty than we would prefer to some (e.g. the fourth amendment example above) and less than we would prefer for others (e.g. the liberty one might think a majority in a democratic system would have to enact a law they desire, a liberty expressly limited throughout the Constitution) to protect the liberty of all.

And thirdly, with all due respect, given that standing forms a core part of the separation of powers, confining the lawsaying power of the judiciary to those "issues which are appropriate for disposition by judges," Coleman v. Miller, 307 U.S. 433, 461 (opinion of Frankfurter, J.), and to contemplating those issues only when so required to dispose of a case or controversy, I think this backwards approach to standing is profoundly at odds with the origins and function of judicial review in our system of government.

Although "Constitution worship is America's secular religion," Morton Horwitz, The Meaning of the Bork Nomination in American Constitutional History, 50 U. Pitt. L. Rev. 655, 663 (1989), America does not have an equivalent to Iran's Council of Guardians. "[O]ur Constitution lacks a Judicial Review Clause[.] The reason why judges are entitled to make constitutional decisions is that the Constitution is real law. That's Marbury's central point. A written constitution creates a hierarchy of legal rules; and when the Constitution clashes with an ordinary law, the Constitution prevails." Frank Easterbrook, Foreign Sources and the Constitution, 30 Harv. J. of L. & P.P. 223, 226 (2006) (footnote omitted; emphasis in original). Judicial review is not a free-floating power to review the constitutionality of the actions and decisions of Congress or executive actors; "by the express terms of the Constitution, the exercise of the judicial power is limited to 'cases' and 'controversies.' Beyond this it does not extend, and unless it is asserted in a case or controversy within the meaning of the Constitution, the power to exercise it is nowhere conferred." Muskrat v. United States, 219 U.S. 346, 356 (1911). Judicial review is rooted in the nature of the judicial power:

Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and ... [even when presented with] the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law.

Coleman, supra, at 461 (opinion of Frankfurter, J.). In Marbury, generally misapprehended as the taproot of judicial review rather than its first flowering (see generally Saikrishna Prakash & John Yoo, The Origins of Judicial Review, 70 U. Chi L. Rev. 887 (2003); Randy Barnett, The Original Meaning of the Judicial Power, 12 Sup. Ct. Econ. Rev. 115 (2004)), Chief Justice Marshall explicitly grounded the power to pass on the constitutionality of acts of Congress in the necessity to decide cases:

Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-8 (1802) (emphases added). Emphatically, "[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments ... 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.'" Valley Forge v. Am. United, 454 U.S. 464, 471 (1982) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892)). "Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.' The constitutional power of federal courts cannot be defined, and indeed has no substances, without reference to the necessity 'to adjudge the legal rights of litigants in actual controversies.'" Id. (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)).

While Article III demands that judges say what the law is, Article III also places a limitation on that power stemming from its nature: it requires "a context to provide an appropriate occasion for saying the law: judges say the law because they have to in order to resolve a specific dispute between parties." Althouse, supra, at 940. To be sure, while "[c]ases are disputes that the courts must address, ... they are also occasions for saying what the law is," id. at 939 - but they must be cases, and for the lawsaying power to legitimately come in to play they must present "an honest and actual antagonistic assertion of rights by one individual against another" which cannot be resolved other than by the court's "determin[ation] whether the act be constitutional or not." Chicago & Grand, supra. "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854 (2006) (slip op. at 5).

I would not be so presumptuous as to hold, as Marghlar suggests ("is it your view that establishments are effectively political questions, totally outside the province of the judiciary?"), that no one has standing, and that the establishment clause is purely a political question. I would simply hold potential establishment clause litigants to the same requirements that govern any other litigants in federal court, no more no less. Concededly, the upshot of this might well be that it would become quasi-non-justiciable in practical terms, at least until a litigant who could demonstrate they had standing showed up. But that isn't much of a concession: by that standard, every exercise of power by the federal government is quasi-non-justiciable until it injures (or threatens with certainly impending injury) a person.

More bluntly, I don't suggest - and Hein doesn't suggest - that there is no one who could have standing to challenge a particular program or to litigate establishment claims generally, but nevertheless, I feel justified in declining Pat's and Marghlar's invitation to conjure up hypothetical injuries spawning hypothetical litigants who would hypothetically meet Lujan's requirements. Why? Because it would be an empty exercise: as is hopefully clear by now, I don't agree that the assessment of whether a particular litigant (or class of litigants) has standing turns on the question of whether or not anyone else might. I dispute the premise on which such an excursus rests: it would only be necessary to explain who would have standing before determining taxpayers don't if I agreed that someone must have standing, and that we need only work out who. That is backwards. No matter how good the constitutional claim, to bring it into Federal court, the inquiry must start from an injured litigant.

Presumably, Pat and Marghar hope that engaging in this exercise will demonstrate that we can't imagine a plaintiff who would have standing, and that recoiling from that conclusion, I will be forced to agree that someone ought to have standing, so why not taxpayers? If that's the gambit, it rests on misunderstanding of my position. Even if I believed that no one could have standing under Lujan to challenge a given program, that wouldn't change my position any, which is that standing is tied to litigants, not to constitutional clauses.

Anyone who can demonstrate standing under Lujan can litigate an establishment clause claim. If that turns out to be nobody, that isn't something I find problematic, given my view of where standing fits into the scheme of the Constitution.

Post facto:
The contingency plan (1/16/10)