Forceful Minimalism, Hein V. Freedom from Religion Foundation, Inc., and the Prudence of "Not Doing"

By McNamara, Brendan R. | Washington Law Review, May 2008 | Go to article overview

Forceful Minimalism, Hein V. Freedom from Religion Foundation, Inc., and the Prudence of "Not Doing"


McNamara, Brendan R., Washington Law Review


Abstract: Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds in federal court. In Flast v. Cohen, the Court carved out a narrow exception for challenges to expenditures that allegedly violate the First Amendment's Establishment Clause. This exception requires a connection between the constitutional violation and Congress's use of its taxing and spending power. Hein involved a challenge to purely executive actions, and the Court faced the issue of whether to expand Flast to cover such actions. While some Justices called for completely overruling Flast in all situations and others called for expanding Flast to cover purely executive actions, the plurality took a narrower approach, denying standing without expanding or contracting the taxpayer standing doctrine. This Note builds on prior scholarship that advocates for judicial minimalism by arguing that Hein's plurality opinion demonstrates judicial minimalism succeeding in practice.

INTRODUCTION

Justice Brandeis famously said about the Supreme Court's role, "[t]he most important thing we do is not doing."1 Judicial review, the power to strike down laws, essentially amounts to the power to negate the acts of the popularly elected and politically accountable branches of government. This power is not one to wield lightly. Rather, judicial review "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy . . . ."2 Judicial minimalists embrace the view that courts should only do as much as necessary to dispose of the case at hand and no more.3 If all judicial decisions run the risk of being wrong, minimalist decisions run this risk only when necessary.

This Note uses a recent Supreme Court decision, Hein v. Freedom From Religion Foundation, Inc.,4 to argue for judicial minimalism as a general method of adjudication. In Hein, the Court faced a choice between issuing a narrow or broad ruling.5 The case presented an issue of standing-specifically, whether federal taxpayers have standing to challenge executive actions that allegedly violate the Establishment Clause.6 Justice Alito's plurality opinion denied standing on narrow grounds by distinguishing prior precedent.7 Justice Scalia, joined by Justice Thomas, argued for a broad resolution that would overrule precedents on which standing could be based and thereby deny standing.8 The dissent argued for interpreting prior precedents expansively to allow standing.9 Justice Kennedy also wrote a separate concurrence discussing concerns about separation of powers.10

This Note argues that Justice Alito's plurality opinion in Hein resolves the case in the best way. This view contradicts that taken by many of the legal commentators who reacted to the case when the opinions were issued." Further, this Note analyzes the divergent jurisprudence of Justice Alito's and Justice Scalia's opinions in Hein, explores how the facts in Hein fit into taxpayer standing doctrine, and argues that the plurality's minimalist approach best exemplifies the prudence of "not doing" more than necessary to resolve a case. This narrow ruling avoids a drastic change in a settled area of law that has not proven to need an abrupt about face, while leaving room in the future for further modifications as they may prove necessary upon consideration of cases with facts that compel broader judicial action. …

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