With Winn, there really is nothing new under the (constitutional) sun

April 4th, 2011

Yesterday, I commented that there really is nothing new under the (constitutional) sun

I was teaching my class about Iqbal a few weeks ago, and the debate centered around how open the federal court doors should be. A few weeks before, I was talking about federal question jurisdiction, and how broadly it should be interpreted (Holmes in American Well Works v. Smith v. Merrel Dow, etc). Same debate–how easy should it be to get into federal court. Earlier in the semester we talked about the Federalist v. Anti-Federalist debate about the size and scope of the federal courts in relation to the state courts. Same question.

It amazes me how the same exact tropes keep popping up over two centuries, in different forms.

Less than twelve hours later, we get Winn, an opinion that narrows taxpayer standing and makes it harder for plaintiffs to access the federal courts. Comparing Winn to Berghuis v. Thompkins, at Volokh, Orin Kerr similarly characterizes this opinion as the Roberts Court “adopts a new principle that substantially narrows the old precedent (in Berghuis, the new principle is that silence should be treated as a Miranda waiver; in Winn, it is that tax credits should be treated differently than expenditures).”

What the Warren Court giveth, the Roberts Court taketh?

This trope keeps popping up over, and over.