In a week when the news concerned taxes and spending, the Supreme Court happened to decide a case dealing with . . . taxes and spending. This was not a federal but a state case, from Arizona, and the good news is that in a 5-to-4 ruling the Court recognized its proper, limited role in our system of constitutional self-government.
Since 1998 Arizona has given tax credits for contributions made to “school tuition organizations” (STOs), which fund scholarships for students going to private schools, some of them church-related. Inevitably, some Arizona taxpayers challenged the STO tax credit as an unconstitutional establishment of religion.
The justices could have decided Arizona Christian School Tuition Organization v. Winn on the merits. The Court could have said the tax credit was constitutional, or it could have said it was not. But Justice Kennedy, writing for the majority, instead held—on an issue also briefed in the case—that the objecting taxpayers lacked “standing” to bring their complaint in the first place.
Standing concerns who properly may bring a claim that a government action violates the Constitution. The Court has developed the doctrine over the years to ensure that it is resolving actual cases and controversies and not, as Justice Kennedy observed, mere “questions and issues.” For the federal courts to decide questions of law outside of cases and controversies, Kennedy continued, “would be inimical to the Constitution’s democratic character.”
Standing requires, among other things, that the complaining party suffer an injury that is concrete, particularized, actual, or imminent, not conjectural or hypothetical. Necessarily, as Justice Kennedy wrote, “a plaintiff who seeks to invoke the federal judicial power must assert more than just the ‘generalized interest of all citizens in constitutional governance.’ ”
Such an understanding is reflected in a long-standing rule forbidding so-called “taxpayer lawsuits.” Justice Kennedy applied this rule to the Arizonans who challenged the tuition tax credit. The four dissenting justices agreed with Kennedy’s application. The disagreement among the justices lay in whether the objecting Arizonans might have standing under an exception to the rule carved out in 1968, in Flast v. Cohen.
In Flast a group of taxpayers challenged as unconstitutional an act of Congress authorizing expenditures of federal funds to underwrite teaching of secular subjects in church-related schools. To the question of whether they had standing, the Court said they did. Chief Justice Warren explained that standing was available to a taxpayer so long as his objection was to an expenditure made under the congressional power to tax and spend, and so long as he made that objection on the basis of a specific constitutional limitation on that power—such as the First Amendment’s ban on establishment of religion.
Addressing whether the Arizona taxpayers had standing under Flast, Justice Kennedy rejected the argument that the STO tax credit case should be seen in the same light as a congressional expenditure. Kennedy explained that when government collects and spends taxpayer money, as in Flast, the government is making choices that could result in a subsidy of religious activity. But in Winn, while Arizona “affords the opportunity to create and contribute to an STO, the tax credit system is implemented by private action and with no state intervention.”
Writing for the four dissenters, Justice Kagan said the majority’s distinction between a tax credit and a tax expenditure was one without a difference. She charged that the decision “devastates taxpayer standing in Establishment Clause cases.”
Yet it is only in such cases that taxpayer standing has been permitted. For some reason—perhaps the hostility toward religion held by some justices in the middle decades of the twentieth century—only the establishment clause has been regarded by the Court as a specific limitation on the taxing and spending power. Flast is the anomaly: The case might not have been decided as it was but for the liberal composition of the Court at the time. The entry for Flast v. Cohen in the by no means right-leaning Oxford Guide to United States Supreme Court Decisions observes that Flast “was central to the Warren Court’s liberal activist philosophy of increasing public access to federal courts and making them more receptive to public law litigation.”
We have reaped the whirlwind, Justice Kennedy seemed to say in his opinion, for ours is “an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies.” Given those realities, “courts must be more careful to insist on the formal rules of standing, not less so.” Judicial self-restraint is the message here. It’s the right message, too.