The LA Times reports that many court watchers were surprised by Solicitor General Neal Katyal's argument in yesterday's Arizona Christian School Tuition v. Winn hearing, that not only do plaintiffs not only lack the standing to sue, but that Supreme Court cases that might suggest otherwise were wrongly decided.
Justice Elena Kagan, Katyal's boss until she joined the court in August, also objected to his argument. She ticked off a series of landmark rulings that rejected state aid to parochial schools. "So, if you are right, the court was without authority to decide" those cases, "but somehow nobody on the court recognized that fact?" she asked.
"My answer to you is yes," he said.
At this, Justice Anthony M. Kennedy, a key swing vote, called for a pause. "I just want to make sure I heard your answer. Your answer is yes? Those cases were wrongly decided?"
Katyal said the court might have the right to say the states had wrongly subsidized religion, but he insisted no taxpayer had standing to sue.
As Justice Breyer suggested – though Katyal resisted his conclusion – if this argument is adopted, the court's already-teetering precedent of Flast v Cohen would be no more. Flast carved out the ability of taxpayers to sue over Establishment Clause violations when a nexus connects taxpayer money to the violation.
