The Bush administration is trying to encourage religious groups to get into competition for funds for social programs. This case is about the practice of having conferences and inviting religious groups to the White House to encourage them do do this.
So the question here is merely whether Freedom From Religion has standing.
So, assuming that it's important to get the judiciary to tell us what the law is, should we assume that it's important to get the courts into a position to be able to answer the question about whether this kind of activity violates the establishment clause? If we want courts to do this, maybe we want courts to be more liberal about standing-- otherwise there can be no review of this type of action. That might be OK too, though: it would just mean that there are some areas outside the scope of courts-- the right way to deal with this would be in the political branches.
One might think that we want judicial resolution in order to get a final answer. Do we want final answers, or would it be better to leave the dialog open? Or do courts really give final answers? Maybe court decisions at least last a little longer than political ones. So getting rulings from courts makes them less flexible, and therefore less able to change when society does.
Maybe courts shouldn't be too eager to get to these questions, because deciding either way is so politically loaded. On the other hand, maybe it's better if people can know what rules are. And on the third hand, if all we're doing is resolving disputes, we really only like rules in the context of particular situations. Basically: do we want rules stated at a high abstract level, or at a contextualized minimalist level?
And if the court doesn't self-restrain, they'll have no practical power, and they'll just get replaced. So even if we like early-stated strong rules, the court can't go overboard with it.
So if we want to hear generalized grievances, we'll want standing to be at the prudential level. On the other hand, if we accept the idea of prudential standing, courts can just duck cases, but the parties have the right to a decision. Should courts self-restrain in order to hold on to political capital? Classical response: you'll be strongest if you are just disciplined about the law, taking those cases that you have a duty to and do what the law requires.
There is a real issue here to be decided: does the president's program violate the establishment clause? But the question here is: who can activate the judicial machinery to get it answered? There's no personal injury at stake-- it's a generalized greivance, not a controversy between particular parties.
If we stick to saying you have to have an injury in fact, it's hard to get questions of this sort into court. So our notions about a particular case might influence whether we declare standing to be constitutional or prudential.
Note that the 7th Cir didn't have discretion about whether to take the case, it came out of the district court in Madison. SCOTUS takes the case in order to review the Cir Ct. App. But the district court had to address the standing issue as well. Note: Certiorari power is different from standing. Should a local court in Madison tell the executive branch to cancel a nationwide program involving the president's discretion about how to allocate funds?
In Flast, there was a statute (so the branch in question was congress) to be interpreted. Here, it's a little more intrusive on the president. And that decision was made in lower courts.
So, back to basics: is it important to get the law said by a court? (should we have a broad or strict notion of standing, in other words) We need to understand both broad and narrow views on standing, so we can argue on behalf of our clients to judges who might hold either.
OK, so assuming that it is important to get the law said by a court, who, ideally, should be the litigant on the other side? So we want it to be possible for the court to tell us whether these faith-based programs violate the establishent clause, why should a taxpayer be the right injured party? Maybe Flast is a useful legal fiction: if the government spends money on something, who is injured, after all? And we want to be able to review executive transgressions of constitutional imperatives, even if we can't find a directly injured party.
But see Scalia: Flast is an anomaly-- it doesn't fit with the rest of our doctrine.
Posner's hypo: what if sec of DHS decides to build a mosque and pay an imam to preach there as a way of cultivating goodwill with the Islamic world? Someone else would have standing (analogous to the SCRAP suit).
Anyway, taxpayer standing does at least get you an attenuated injury, rather than just "I am offended by this." But that might be OK, after all, why are some students better litigants than the Sierra Club (in the environmental case)? If you're saying there's taxpayer standing, you're pretty much opening the door to ideological suits anyhow. Maybe we want some practical safeguards against ideological groups whose interests weren't protected in the democratic process, and who now seek to delay the process and get attention for their cause.
Of course, any organization that wants to sue can find a taxpayer who is on their side. Why should we accept a special test (a la Flast) for establishment clause cases? Maybe because without it, we might never be able to challenge establishment clause issues. Maybe Scalia is over-obsessive about wanting the law to be a consistent whole; the majority's decision is more in line with judicial minimalism: they change nothing-- they just distinguish Flast, because there was no legislative action here. So: stare decisis, and we're done.
So is the executive branch genuinely different to such an extent that its presence distinguishes the case, or is the court just sweeping this case under the rug in order to preserve Flast, since it comes in handy sometimes (keeping a lid on certain types of legislation).
Here, once again, the court is protecting its ability to decide certain cases.
Back to Posner's hypo: there'd be someone who was more injured than just a taxpayer.
So is there really a distinction between the legislature and the executive to such an extent that we can preserve Flast but not have standing here? Well, at the very least, statute can be reviewed in detail, and executive discretion is fuzzier. But if we follow that line of reasoning, says Posner, the government could maybe build a mosque. Says Alito: if that happened, we wouldn't need taxpayer standing, and anyway, the political checks will be enough to prevent the full-on parade of horribles. We shouldn't build new doctrine on the notion of some farfetched horrible hypothetical.
Dissenters: there is a real injury here-- that's the citation to Madison. This is one of the fundamental documents informing the establishment clause (it pre-dates 1A). Madison and Jefferson (successfully) opposed a small tax in support of some religious schools. We should take action at the first bit of infringement on our rights, rather than let little bits get nibbled away. Rights depend on defending the principles at their first violation. If you can take $0.03 for religion, you can take it all.
Hey, was that a defense of ideological litigants? Maybe so, in the context of the establishment clause. Having an injury in fact basically depends on a judge thinking your injury is severe enough. So having the injury-in-fact test is one thing, applying it is another. It's possible to have the test, and consider Flast to be consistent with it.
So if you don't know for whom the injury is coming, you've got a standing question. If you do know, and you can see it coming, you worry about ripeness.
Consider the situation: we want people to be able to assert their legal rights, and to use courts in order to get them articulated. So when an inappropriate law gets passed, what are your options: if you comply, you lose your opportunity to challenge it, but if you fail to comply you risk the penalties. That's why Abbot's case needs to be heard prior to the enforcement of the regulation.
Note that this case comes before the constitutionalization of standing (Abbott is 1967, and standing is from the 70s).
With ripeness, we weigh both the fitness of the issue for judicial resolution (do we have enough factual context) and the hardship to the parties of witholding access to the courts. The court here says there would be hardship, and that it has all the facts it needs: no additional concreteness is needed.
See ¶ 2 on p. 69. It's just plain useful to be able to do some ad hoc deciding, as opposed to stickinging with the plain constitutional standing test (which neglects hardship on the plaintiffs). So keeping standing separate from ripeness permits the courts to examine hardship and fitness on a case-by-case basis when needed. On the other hand, avoiding constitutional doctrine seems a little like cheating.
Not only that, but there are exceptions to the mootness doctrine (collateral consequences, capable of repetition but evading review, and voluntary exception, e.g.). These might be why the court likes to have a separate doctrine from standing.
Anyway, the court gets to hold back from declaring affirmative action unconstitutional (which they probably would have done in 1974). So the issue gets to percolate another couple of years in the public discourse, and then finds it can be more moderate at that tie.
So why not just deny cert? There was a larger category in those days that the court had to take; nowadays they'd probably just deny cert. And note that state courts (like the WA SC) don't have to follow Art III standards (WA has a "public interest" standard).
There are policy reasons too: we don't want impeached judges (or presidents) being able to appeal their convictions in the Senate to the judiciary. That would weaken that check on their power, and drag things out. Still, the White and Souter dissents have some point. Rhenquist's (majority) opinion says we will never review this matter, but the dissenters can imagine exceptions that might make sense.
So what's the issue here: mootness? political question? standing? ripeness?
Presumably the first plaintiff is suing as some kind of Jane Doe litigant. The second plaintiff is a senator complaining that the statement frustrates the will of congress.
So, does the senator have standing? The statute purports to give members of congress standing, but that doesn't overcome the Art III requirements. Seems like no. See Raines: a congressperson's incremental loss of power isn't a suitable injury-- too abstract.
So what about the other litigant? There might not be a ripeness issue (in the sense that the statute can overcome that). But maybe she doesn't have standing-- we don't know for sure that the president has her in mind.
This doesn't look like a political question, though. We probably just need to find someone who is grabbed up in a warrant that doesn't abide by the statute.