This article represents an attempt to speculate about what may lie behind the Court's recent choices regarding standing in Establishment Clause matters—especially its move to sharply contain or even eliminate taxpayer standing. I will develop two principal themes. The first is fairly straightforward: that the Court wants to cut down on the amount of Establishment Clause litigation in the federal courts, and that it wants to do so in an asymmetrical fashion which significantly reduces challenges to governmental financial aid to religion and therefore increases the prospect that such aid will be delivered. I will consider the reasons that the Court may want to do that, and I will muse about some of the accompanying implications for Establishment Clause litigation and doctrine. The second theme, which involves deeper speculation, and which draws inspiration from Alexander Bickel's famous idea that refusing jurisdiction can involve the deliberate exercise of a "passive virtue," is that the Justices are preparing for a major substantive departure from existing substantive Establishment Clause doctrine, but have not yet worked out the contours of their new position and its rationale. Rather than perpetuating existing law while they debate, or clouding doctrine with messy distinctions, half-doctrines, or transitional rulings that are destined not to survive, they would rather remain passive and relatively silent until the best opportunity arises for a bold transformative departure. While a cutoff of taxpayer standing will not entirely advance this aim, it will substantially reduce the number of instances in which the Court gets drawn into open controversy over the Establishment Clause's future, and it will do so in some of the messier and potentially more divisive cases. This may afford those Justices who are already committed to the new departure the time and circumstances they need to hone their arguments and persuade other Justices who are on the fence that theirs is the right direction to take. [ABSTRACT FROM AUTHOR] Copyright of Chicago Kent Law Review is the property of Chicago Kent Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
Mark C. Rahdert,
Court Reform and Breathing Space under the Establishment Clause,
Chi.-Kent. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss3/7