The Supreme Court's conservative divide

Many people feared, or hoped, that President Bush's appointees to the Supreme Court would be essentially indistinguishable from Justices Antonin Scalia and Clarence Thomas. It turns out that with stunning regularity, Chief Justice John Roberts and Justice Samuel Alito are indeed voting the same way as their conservative colleagues. Just this week, the four justices, along with Justice Anthony Kennedy, formed the majority in decisions involving free speech, campaign finance, race-conscious pupil assignments, and taxpayers' standing in federal court.

Despite this seeming consensus, however, an intriguing division is emerging among the Court's conservatives. Roberts and Alito are conservative minimalists. They prefer to preserve previous decisions and work within the law's existing categories. Their opinions avoid theoretical ambition and tend to be narrowly focused on the particular problem at hand. By contrast, Scalia and Thomas are conservative visionaries, parallel, in many respects, to such liberal predecessors as Hugo Black and William O. Douglas. They favor fundamental change, immediately, and their opinions are sweeping and broad, often calling for overruling longstanding precedents.

This division was most strikingly apparent in this week's decision resolving the important question of whether and when taxpayers are permitted to challenge federal expenditures to religious organizations. In brief, the Court concluded that taxpayers may not object when the executive branch uses their money to fund religion. Indeed, taxpayers may not object if the executive branch uses public money to make direct grants to a particular church, or even to build a church where only Catholics may worship.


The case revisited the Court's 1968 decision in Flast v. Cohen, which held that when Congress has explicitly said that taxpayer funds will go to religious organizations, taxpayers are entitled to make constitutional objections in federal court. In so ruling, the Court pointed out that a major purpose of the Constitution's Establishment Clause, emphasized by James Madison, is specifically to ensure that federal funds do not support religion. For this reason, the ordinary ban on "taxpayer standing" would be relaxed when taxpayers objected that their money was going to support religious institutions.

Conservatives have long despised Flast. They believe that the Court has been far too aggressive in insisting on a sharp separation between church and state. By allowing taxpayers to challenge federal expenditures, Flast increased the judicial role in policing that separation. Moreover, conservatives object to the idea that taxpayers or citizens should ever have access to federal court. They insist that federal judges should get involved only at the behest of those who have a personal injury, such as a loss of liberty or property, that is both "concrete" and "particularized." They believe that taxpayers and citizens, as such, lack a concrete, particularized injury, simply because any harm to them is speculative, remote, or merely psychological.

This week's decision involved a problem very close to that in Flast. In its faith-based initiatives, the White House used taxpayer funds to pay for various conferences, and these were alleged to promote religion as such, in violation of the Constitution. Just as in Flast, taxpayers objected that their money was being used unlawfully.

The Bush Administration attempted to distinguish the current case from Flast, arguing that in that case Congress had specifically earmarked federal funds for religious institutions, whereas here the executive branch was using funds from a general appropriation. Judge Richard Posner, writing for the court of appeals, responded that this was a distinction without a difference. In the end, all money is appropriated by Congress, and if taxpayer funds are going to religious institutions, it does not matter whether Congress has specifically ordered the funding. Posner added that if taxpayers did not have standing, the executive branch would be able to use a general appropriation for whatever religious purpose it chose--for example, to build a specific church. In his view, Flast must be read to allow taxpayers to object to such blatantly unconstitutional action.

In his opinion, Alito took the minimalist route. Flast, he explained, was a "narrow" ruling that depended on a specific fact: Congress had expressly authorized the use of federal funds for religious purposes. In this case, by contrast, there had been no express authorization. Alito argued that it made sense to forbid taxpayers to challenge executive uses of general appropriations, because otherwise, taxpayers could "enlist the federal courts to superintend ... the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials." And if taxpayers could so enlist the federal courts, they would be "virtually continuing monitors of the wisdom and soundness of Executive action," which "is not the role of the judiciary."

Crucially, however, Alito said that the Court's decision merely would "leave Flast as we found it," neither extending it nor overruling it. The Court would "decide only the case at hand." Taxpayers would continue to be permitted to challenge any explicit congressional appropriation of taxpayer funds for religious purposes.

Scalia, joined by Justice Thomas, refused to join the Alito opinion, which he described as relying "on the random and irrational." Scalia argued for a more ambitious and altogether different route. In his view, Flast is a "blot on our jurisprudence" and should be overruled. Taxpayers could not claim a concrete and particularized injury; any harm they suffered was a form of "Psychic Injury," not suited for adjudication in federal court. Going back to first principles, Scalia urged that Flast was evidently wrong, and its errors had to be "addressed head-on." "Minimalism," Scalia said, "is an admirable judicial trait," but he contended that "the soul of the law" is "logic and reason," which the Court's minimalist approach failed to offer. Thus he urged that the Court should insist on "the imposition of logic and order" on the law, founded on "a logical theoretical underpinning."

Here, in a nutshell, is the division between the Court's conservative minimalists and its visionaries. In the context of a particular case, which can be resolved without reference to fundamental principles, Alito (along with Roberts, and also Kennedy) does not question past decisions, avoids the most fundamental disputes, and avoids theoretical ambition. By contrast, Scalia (along with Thomas) is not cautious about objecting to a "chaotic set of precedents" and rethinking them from the ground up. We can see the same disagreements in the many other areas, including abortion and campaign finance, in which Alito and Roberts worked within existing precedent while Scalia and Thomas urged that Roe v. Wade and important campaign finance decisions should be jettisoned immediately.


In the short term, the fissures between the Court's conservatives do not seem to make much difference to actual outcomes. While minimalists tend to be unpredictable, Alito and Roberts have shown no unpredictability at all, almost always siding with Scalia and Thomas in controversial cases. Notwithstanding their differences, Alito and Scalia agreed that, so long as there has not been a specific congressional appropriation, taxpayers are never permitted to object to executive branch expenditures of federal funds for arguably unconstitutional purposes. To the extent that existing law allows room to maneuver, it seems there will apparently be a solid "block" of four conservatives, usually joined by Justice Kennedy. In problems ranging from abortion to employment discrimination to campaign finance to student speech to affirmative action to the war on terror, it is entirely predictable that where current law leaves gaps or uncertainty, the minimalists and the visionaries will be able to make common cause.

It is harder to predict what will happen down the line. Suppose that the continued vitality of Flast v. Cohen or Roe v. Wade is raised in the near future--how will Alito and Roberts proceed in that event? It is clear that the two justices do not like to overrule precedents when it is not necessary to do so in order to resolve the case at hand. What is less clear is how the minimalists will proceed when a case cannot be decided without taking a stand on a precedent that they reject in principle. The minimalists and the visionaries have been able to agree on how to resolve the key cases this term. It remains to be seen if their alliance will fracture when the question of fundamental constitutional change simply cannot be postponed.

By Cass R. Sunstein