Some more thoughts on Hein and WRTL

Our main posts covering yesterday's SCOTUS rulings are collected here.

First, a couple of thoughts on Hein. Over at SCOTUSblog, David Stras says:

Nonetheless, the plurality (consisting of Chief Justice Roberts and Justices Kennedy and Alito) applies stare decisis to uphold a rule that makes little sense doctrinally ... [P]erhaps they are exactly what they said they would be — judicial minimalists that have respect for precedent

I'm not sure that stare decisis and minimalism are correctly joined here. Although Kennedy's concurrence makes clear that from his perspective, Flast is a closed question, I think that if there's a thread that runs through WRTL, Hein and Carhart, irritatingly enough (since I argued a year ago that the Chief isn't really a minimalist) it's minimalism. That is, in Hein, one might take a liberty and say that the plurality could be read to say "you guys would obviously lose if we overruled Flast, but even if we assume Flast is the governing test, you're still going to lose." Likewise, in Carhart, the majority might be read to say "you guys would obviously lose if we overruled Stenberg (and/or Roe-Casey itself), but even if we assume that's still good law, you're going to lose." Of course, people can disagree with whether those outcomes are correct (that is, as Justice Souter explains in his dissent, one might say Flast militates the opposite result), but it seems to me that the predominant theme isn'tt stare decisis, but what we saw in Alito's Randall concurrence last term: an unwillingness by Roberts and Alito to overrule a precedent unless they conclude that the case at bar really can't be resolved without overruling it. They concluded only that the cases at bar didn't require overruling Flast and McConnell in those cases, not that they would reaffirm those precedents in a case where the question was unavoidable.

That's minimalism, not stare decisis. The reason I bring this up now is because if tomorrow we get the school cases and they do explicitly overrule, let's be diplomatic and say "any part of any case," suggesting adherence to stare decisis as a hallmark of Roberts and Alito on Monday provides a convenient yardarm to hang them from on Thursday if they then overrule a case, even if they're actually doing exactly the same thing in both cases, from their perspective.

Second, I think Hein is mischaracterized if it's described as cutting back on the Flast exception to standing, rather than declining to extend it further. Perhaps an in some ways parallel example would be Coker v. Georgia. I wrote a few weeks ago about a death penalty case out of Louisiana where LASC upheld a death sentence based on aggravated rape where the aggravating factor was the victim's age. I had thought that Coker had settled the question of the death penalty for rape thirty years ago, but apparently not: Coker was framed in terms of "the rape of an adult woman," which the LASC read as holding open the question of (presumably) anyone not falling into that category. Apparently, I'm the only person on the face of the Earth who suggested that to limit Coker's application to the rape of only an adult woman, as opposed to rape, period, was to make a distinction unsupported by the reasoning of the case, was to "elevate its rhetoric over its reasoning." Which is, as I read it, more or less what six Justices in Hein are saying about Flast: sure, by its own terms, it may have dealt only with action by Congress, but when you look at the reasoning the Flast and Coker courts were working from, the real issues are, respectively, rape and spending on unconstitutional programs, no matter what terminology those opinions dealt in. So the real question in Kennedy and Hein is whether to expand those precedents to the full expanse of their logic.

This seems like an opportune moment to add, by the way, that I'm bemused reading various reactions to the Hein plrurality suggesting that the distinction made therein between Congressional and Executive action has foundation in neither principle nor precedent (e.g. Melissa Rogers, to say nothing of (it seems) six members of the court). To be sure, it has no distinction in principle, but then, Flast has no basis in sound standing principles either, as Our Hero explains in his usual inimitable style. Moreover, the distinction does have roots in precedent: it's rooted in Flast itself, and I don't see how Hein is essentially doing anything different to what Valley Forge did, which is to say that when the Flast court spoke in terms of Congressional action, they meant Congressional action. The plaintiffs in Valley Forge

fail[ed] the first prong of the [Flast] test for taxpayer standing ... [because] the source of their complaint is not a congressional action, but a decision by [an executive branch department] to transfer a parcel of federal property. Flast limited taxpayer standing to challenges directed "only [at] exercises of congressional power." Id. at 102. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 228 (denying standing because the taxpayer plaintiffs "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch").

454 U.S. at 479.

Third, in relation to WRTL, There's a kind of "those in glass houses" feel to the New York Times - which is owned by the multi-billion dollar corporation NYT Company, "a leading media company with 2006 revenues of $3.3 billion" - criticizing a ruling that protects the ability of corporations and unions to do more or less exactly what the New York Times does daily, i.e. running thinly-disguised advocacy pieces. And if you think that's an unfair characterization, that the New York Times throws straight dice, consider that they assess the result in WRTL thusly: "[t]he exact extent of the damage is unclear." Everyone got that? This ruling did damage. Anyone think that alluding to "damage" doesn't connote the view that this ruling was doubleplusungood? To be sure, that's a valid position to take, but it is ineluctably a position taken.

Fourth, to pick up a theme voiced earlier in the month, elsewhere in the NYT today Linda Greenhouse suggests (in a story with a lovely accompanying photograph) that Hein "showed the influence of the new justices." I'd like to know on what Hein's critics are basing the assumption that Justice O'Connor would have come out differently in this case (by which they usually mean, would have joined Justice Souter). Justice O'Connor was the fifth vote in Valley Forge, which, as discussed above, drew an indistinguishable distinction to that used in Hein to limit Flast.

Alas, I suspect that we are doomed to hear grumbling about how a case would have come out differently but for the replacement of Justice O'Connor every time the court hands down a decision of which liberals disapprove. To be sure, that will sometimes be true - Carhart is a case in point. But it would be healthy for commentators to have at least some basis in caselaw for making assertions about how O'Connor would have come out. I'm not saying that critics of Ledbetter who assert that O'Connor would have ruled for Ledbetter are wrong, necessarily, but I would say that they can't talk about how O'Connor would have come out in Ledbetter without tethering that to an assessment of her Title VII and statutory filing period jurisprudence, and likewise, don't talk about how she'd have come out in Hein without explaining what changed since Valley Forge, or for that matter, citing a single case. Justice O'Connor often sided with the court's liberal bloc, but far from always.

Finally, I must voice my amusement at this from Tom Goldstein at SCOTUSblog:

[T]he last two months of the Term have likely been quite demoralizing for the Court’s more liberal members.

I wonder if Justice Rehnquist found, say, the 1970s "quite demoralizing" - he, after all, frequently only had himself for company, while the court's liberal bloc today, on the other hand, have only the four of them and a pliantly sympathetic media for company - and they can prevail by winning over but a single extra vote. I suspect that there had to have been cases where Justice Rehnquist was happy to GET one extra vote, let alone to only NEED one extra vote to prevail. What would have happened if legal conservatives had gotten "demoralize[ed]" just because they lost a few cases that meant a great deal to them? I bet losing AMK in Casey was "demoralizing" for Justice Scalia, but he somehow managed to find the strength to rip the plurality a new one in dissent, a task that Justices Stevens and Souter are fully equal to, as they demonstrate capably this week.

Post facto:
Chief Justice Roberts and Minimalism: the Story so Far (4/2/08)
Laskowski v. Spellings II (10/15/08)