Near the beginning of her dissent in Arizona Christian School Tuition Organization v. Winn, Justice Kagan acknowledges that the general rule against taxpayer standing dates back to the Court’s 1923 ruling in Frothingham v. Mellon. But some six pages later (slip op. at 9-10), Kagan asserts that the Court decided three Establishment Clause cases “within a year of elaborating the general bar on taxpayer suits”—and she cites cases from 1974 in support of that proposition.

Perhaps I’m completely misunderstanding Kagan’s reference—in which case I will correct this post as soon as I discover that I have erred. But it seems to me that, in the passage I quote, Kagan somehow confused herself into thinking that the Frothingham decision was rendered in 1973—fifty years after its actual issuance (and five years after Flast v. Cohen invented an exception to Frothingham’s general bar). That would be quite a gaffe. [Correction: Mea culpa. In my ill-advised haste, I did indeed completely misunderstand Kagan’s reference. My apologies for my sloppiness, and my thanks to the reader who clearly explained to me my error. (Not knowing how to strike-through a post title, I have tweaked the title so that it fits better with the surviving portion of this post.)]

Speaking of distorting time: Kagan proclaims that “[f]or almost half a century [i.e., the 43 years since Flast], litigants like the plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause.” What that means, of course, is that for nearly two hundred years of American history—from 1789 until the Court’s 1968 decision in Flast—there was no taxpayer standing in Establishment Clause cases. So when Kagan, in consecutive sentences, states that the Establishment Clause has “stood for over 200 years as a foundation stone of religious liberty” and claims that the Court’s reading of Flast “damages one of this Nation’s defining constitutional commitments,” she is obscuring the fact that the Establishment Clause “stood … as a foundation stone of religious liberty” for the bulk of that time without the supposed benefit of Flast’s invention of taxpayer standing. That it did so provides ample reason for confidence that it will continue to do so, no matter how narrowly Flast is construed.

More generally, Kagan displays a classic move of the liberal judicial activist—treating the Warren Court’s errors and excesses as foundational and ignoring the longstanding constitutional traditions that they disrupted.