June 28, 2007
Hein and the Roberts' Court's "Disingenuous Respect for Precedent"
The emerging theme of the Roberts Court is what I'll call disingenuous respect for precedent. In a number of key cases so far this Term, the Court has purported to follow earlier precedents while issuing rulings that are pretty hard to square with those rulings. The most recent example is Hein v. Freedom From Religion Foundation, Inc. [blogged here], in which Justice Alito, for the Court, "distinguishes" the Flast case on the ground that taxpayer standing is permitted in Establishment Clause cases challenging legislative appropriation of funds but not executive expenditure of those funds. (Yeah, and the VP is not part of the executive branch.)
- Balkinization: A Better Approach to Standing in Establishment Clause Cases, by Jack Balkin
- Slate: A Supreme Court Conversation, by Dahlia Lithwick
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It all depends on whose ox is being gored.
Posted by: pjc | Jun 28, 2007 11:15:30 AM