Oral Argument in Hein v. Freedom from Religion Foundation

The transcript from the oral argument in the Hein v. Freedom from Religion Foundation case is here (pdf).  I found the argument to be fascinating and sobering.  I don't have time to write much of an analysis of the argument at the moment, but here are some brief notes on how each justice participated in the argument (or didn't, in the case of Justice Thomas).  I've also made some tentative predictions about the case at the end of the post.

First, three introductory notes regarding this post.  Among the things I haven't attempted to do is spin out the various hypotheticals batted around by the Court yesterday, but that's not to say they aren't important.  Check out the news coverage of the argument for more on that score.  Second, the page numbers that appear below correspond to pages in the oral argument transcript.  Third, I haven't attempted in this post to provide any background on this case or explain my own thoughts on it and the possible outcomes.  Click on the links if you'd like to see those kinds of things.   

* From the beginning, Chief Justice Roberts seemed to side with the Bush administration.  While Solicitor General Paul Clement (the representative of the Bush administration) was arguing, Roberts helped him build his case.  While Andy Pincus was arguing the case for Freedom from Religion Foundation (FFRF), Roberts pushed back on him the whole time.  He called the test Pincus was embracing "totally manipulable" (53), for example, and he said it didn't guard against "frivolous or insignificant claims in any way." (54)  It seems clear that Roberts will vote to reverse the lower court  -- the only question is on what theory. 

Roberts could vote to reverse the lower court by reading Flast in the way the Bush administration suggests.  Here's some hint of that posture from the oral argument.  When Pincus said that the Flast standard hadn't triggered a lot of lawsuits, Roberts replied: "Maybe they're reading Flast different than you read it.  There are not a lot of these challenges because you don't have standing under Flast." (47)  It seems likely that Roberts will take this kind of approach. 

But there's some possibility that Roberts might vote to overrule Flast.  In this vein, it's important to note that, in his rebuttal, Solicitor General Paul Clement invited the Court to do just that if it felt such a move was necessary.   In other words, Clement offered an argument in the alternative. Clement said:

The last point I would leave you with is that if something has to go in this area, if you have to choose between the logic of Flast and the irreducible minimum requirements of Article III, I think it's an easy choice.  You don't abandon the basic requirements of Article III that distinguish the Judiciary from the political branches of Government. (61)

I'm sure Clement had the Chief Justice and Justice Alito, among other justices, in mind when he said these words.

* Justice Alito clearly wasn't buying FFRF's case.  For example, Alito told Pincus that the test he was advocating "either covers every case or it covers no case."  (32)  Indeed, Alito may be inclined to overrule Flast.  Justice Alito made a dramatic entry into the argument by asking the Solicitor General, who had been struggling to defend his position, the following question:

Justice Alito: General Clement, are you . . . arguing that these lines that you're drawing make a lot of sense in the abstract sense?  Or are you just arguing that this is the best that can be done within the body of precedent that the Court has handed down in this area? 

General Clement: The latter, Justice Alito.  [laughter] . . . . I appreciate the question.  (20)

This exchange made me think Alito may be ready to do major surgery on the standing to sue doctrine in Establishment Clause cases.  (By the way, remember Alito's 1985 job application to work at the Reagan Justice Department?  In it, he said he disagreed with Warren Court Establishment Clause decisions.  Interesting to note that Flast v. Cohen is a decision affecting the Establishment Clause written by then-Chief Justice Earl Warren.)

* Justice Kennedy may play a starring role in the outcome of this case (see below), but he did not play a starring role in the oral argument of it.  He did ask a few questions, however, and he made one important statement.  Kennedy first probed the arguments of the Solicitor General, trying to figure out exactly where the Bush administration draws the line.  But Kennedy's comments at the end of the argument seemed most revealing of his position.  He said: 

It seems to me unduly intrusive for the courts to tell the President that it cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government. . . .

[I]t seems to me that there's a standing concern here . . . that we would be supervising the White House and what it can say, what it can -- who it can talk to.  And it seems to me that's quite intrusive from the standpoint of standing purposes. 

I'm not sure that this makes a standard that distinguishes the case from Flast or brings it within those -- within those cases. 

Solicitor General Paul Clement, who doesn't miss much, latched onto this opening in his rebuttal.  Clement said that this case is an "assertion that the Executive Branch officials at the [faith-based outreach] conferences spent too much time talking about faith-based groups and not enough talking about community-based groups.  If that isn't intrusive on the Executive Branch, I don't know what is." (60-61) 

* Justice Scalia was his usual pugnacious self, essentially telling both sides that the lines they were urging the Court to draw did not make sense.  When the Solicitor General basically said that precedent didn't make the best sense, Scalia seemed to agree.  Scalia may have some qualms that hold him back from wanting to issue a broad ruling.  But my guess is that Scalia's questions were designed to pave the way for overruling or doing major surgery on Flast. 

* Justice Breyer was active and thoughtful, as he always is in cases touching on church-state matters.  At one point, he said: "So what's wrong with just saying that Flast stands for the proposition that when the Government spends money in violation of the [E]stablishment [C]lause, a taxpayer -- after all, the money comes from the taxpayer -- can bring a lawsuit?" (25-26)  The Solicitor General said this approach would expand taxpayer standing in this area; Pincus argued that it would not.  Unsurprisingly for a justice who has written a book saying that it's appropriate for the Court to consider the consequences of a decision, Breyer focused in part on the consequences of narrowing or overruling Flast.  He said:  If people who are injured by government spending to promote religion "can't make any challenge. . .  then there are no cases in the courts at all, and the Government can do what it wants without challenge."  (43) 

But Breyer also recognized that lines must be drawn in this area, ensuring, for example, that taxpayers won't have standing to sue simply because the president goes to "lots and lots of prayer breakfasts." (50)  Breyer recognized that it's difficult to draw these lines in ways that are not overly arbitrary.   Interestingly, when Breyer asked about this kind of thing late in the argument, he framed it as "Justice Kennedy's concern."  (51)  Thus, Breyer picked up on some themes Kennedy had mentioned earlier and perhaps also began his lobbying campaign to pick up Kennedy's vote.

* Justice Ginsburg probed the Solicitor General closely, insisting that one did not have to read precedent as the Bush administration did.  She was clearly skeptical of the administration's argument.  Justice Ginsburg said at one point: "So why isn't the line to draw based on Flast, that it's money from the Treasury that makes the difference?" (23-24)  She tried to help Pincus in his argument, basically indicating that the line he wanted the Court to draw in the case made sense and could be administered by the courts.

* Justice Souter spoke up for the "Madisonian theory" that the government should not take even "three pence" from the pocket of the taxpayer in order to promote religion.  After Justice Scalia posed a hypo about the government building a church without sending money outside the government to do it (a situation, the Solicitor General said, that would not give taxpayers standing to sue), Souter noted: "And in this case, when you build the church, you're spending the three pence whether . . . a Government employee is laying the bricks or . . . an outside contractor is laying the bricks or a third party institution to which a grant has been made is laying the bricks.  It's the same three pence."  (10-11)   Then Souter essentially said that the Solicitor General was wrong when he suggested that James Madison was only concerned about the government giving outside groups money to promote religion.  Instead, Souter said the problem Madison was concerned about was "[t]aking the money out of the pocket and using it for a particular purpose. . . "  He noted that "the money comes out of the pocket in each case. "  (11)  In other words, Justice Souter clearly rejected the Bush administration's position.

* Justice Stevens said very little in the argument.  When Justice Alito posed a key question to Clement about whether the Court's precedent made sense (see above), and laughter broke out after Clement gave his answer, Stevens asked the Solicitor General: "Do we think [we] have a duty to follow precedents that don't make any sense?" (20)  Stevens made other comments that were favorable about Flast and seemed to indicate through his questioning that he thought precedent would allow standing for taxpayers to sue in this case.

* Justice Thomas, as is his habit, said nothing.  But I believe there's little doubt that he will vote to overrule Flast.

Of course, oral arguments can be a very imperfect predictor of the outcome of a case, but here are a few guesses nonetheless.  I think it's pretty clear that Chief Justice Roberts and Justices Alito, Thomas, and Scalia will vote to reverse the lower court's decision, which recognized taxpayer standing for FFRF in this case.  Indeed, I wouldn't be surprised if Justices Alito, Thomas, and Scalia vote to overrule Flast in this case.  As indicated above, the Chief Justice is likely to take a more limited approach. 

If both broad and narrow approaches are represented within the camp that wants to reverse the lower court decision, it could introduce an important question about how such an opinion would be written.  Indeed, in light of the fact that Justice Scalia, for example, seemed to reject the reading of Flast put forward by the Bush administration (the one that would not require overruling it) and Chief Justice Roberts seemed to embrace it, there could be significant splintering among the justices on this side. 

Looking at the other side, my guess is that Justices Breyer, Souter, Ginsburg, and Stevens, will vote to affirm the decision below. 

Thus, Justice Kennedy's vote may be the deciding one in this case.  Based on oral argument, he seemed sympathetic to the Bush administration's side.  But he is sure to continue mulling the issues.  And I would guess that Kennedy will be lobbied (if I may use that word in this context) by justices on both sides.   

In any case, we now begin the long wait for the results in this case.