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Justice Thomas, writing for the Court in Cullen v. Pinholster, held that “review under §2254(d)(1) is limited to the record that was beforethe state court that adjudicated the claim on the merits.” The actual split it of this 81 page opinion is somewhat confusing. Here is how the Reporter breaks down the division:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,C. J., and SCALIA and KENNEDY, JJ., joined in full; in which ALITO, J., joined as to all but Part II; in which BREYER, J., joined as to Parts I and II; and in which GINSBURG and KAGAN, JJ., joined as to Part II. ALITO, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA-GAN, JJ., joined as to Part II.

Justice Thomas, joined by Chief Justice Roberts, and Justice Scalia and Kennedy joined the opinion in full. Justice Alito joined all but Part II, whereas Justice Ginsburg and Justice Kagan only joined part II. Justice Breyer joined Parts I and II. So by my count we have six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer), seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Sotomayor dissented as to everything, joined by Ginsbug and Kagan to her Part II. Breyer dissented in part. So there are 5 votes for the judgment to be reversed, 4 votes for it to be affirmed. Phew, I think that’s it.

I’ll update this post as I make my way through the opinion.

Justice Thomas Part I

There are six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer). This section merely lays out the facts.

Justice Thomas Part II

There are seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Alito did not join Part II.

In short, a federal district court sitting in habeas review can only consider the factual record presented to the state court that had originally adjudicated the claim on the merits.

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review islimited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.
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We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicatedthe claim on the merits. Section 2254(d)(1) refers, in thepast tense, to a state-court adjudication that “resulted in”a decision that was contrary to, or “involved” an unreasonable application of, established law. This backwardlooking language requires an examination of the statecourt decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time⎯i.e., the record before the state court.

In a footnote, Thomas rejects Sotomayor’s dissenting position that it would “it would not be “so different” from some other tasks that courts undertake.”

What makes the consideration of new evidence strange is not how “different” the task wouldbe, but rather the notion that a state court can be deemed to have unreasonably applied federal law to evidence it did not even knowexisted. We cannot comprehend how exactly a state court would haveany control over its application of law to matters beyond its knowledge.Adopting JUSTICE SOTOMAYOR’s approach would not take seriouslyAEDPA’s requirement that federal courts defer to state-court decisionsand would effectively treat the statute as no more than a “ ‘mood’ that the Federal Judiciary must respect,” Terry Williams, 529 U. S., at 386

Justice Thomas also chided the 9th Circuit for misinterpreting several precedents:

The Court of Appeals wrongly interpreted Williams v. Taylor, 529 U. S. 420 (2000) (Michael Williams), as supporting the contrary view. . . . The Court of Appeals’ reliance on Holland v. Jackson, 542 U. S. 649 (2004) (per curiam), was also mistaken.

At the conclusion of Part II, Thomas noted:

Although we might ordinarily remand for a properly limited review, the Court of Appeals also ruled, in the alternative, that Pinholster merited habeas relief even on the state-court record alone. 590
F. 3d, at 669. Remand is therefore inappropriate, and weturn next to a review of the state-court record.

And this is where the Court, and the majority parts company.

Justice Thomas Part III

There are five votes for this part: Thomas, Roberts, Scalia, Kennedy, and Alito.

The Court found the 9th Circuit’s alternate holding erroneous.

The Court of Appeals’ alternative holding was also erroneous. Pinholster has failed to demonstrate that the California Supreme Court unreasonably applied clearly established federal law to his penalty-phase ineffective assistance claim on the state-court record. Section 2254(d)prohibits habeas relief.
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Pinholster has not shown that the California SupremeCourt’s decision that he could not demonstrate deficient performance by his trial counsel necessarily involved an unreasonable application of federal law.
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Even if his trial counsel had performed deficiently, Pinholster also has failed to show that the California Supreme Court must have unreasonably concluded that Pinholster was not prejudiced.

Thomas also attackes Sotomayor’s standard of review on habeas, which amounts to little more than “her own sense of ‘prudence’” (another word for empathy).

At bottom, JUSTICE SOTOMAYOR’s view is grounded in little more than her own sense of “prudence,” post, at 26 (internal quotation marks omitted), and what appears to be her belief that the only reasonable mitigation strategyin capital cases is to “help” the jury “understand” the defendant, post, at 35. According to JUSTICE SOTOMAYOR, that Pinholster was an unsympathetic client “compound[ed], rather than excuse[d], counsel’s deficiency” inpursuing further evidence “that could explain why Pinholster was the way he was.” Post, at 30. But it certainly can be reasonable for attorneys to conclude that creatingsympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic.

Alito Concurring in Judgment

Alito, in a brief 1-page concurring opinion, concurred in Judgment, but only joined Part I of the majority’s opinion. In fact, he also joined Part I of Sotomayor’s dissent.

Although I concur in the Court’s judgment, I agree withthe conclusion reached in Part I of the dissent, namely,that, when an evidentiary hearing is properly held in federal court, review under 28 U. S. C. §2254(d)(1) must take into account the evidence admitted at that hearing.As the dissent points out, refusing to consider the evidencereceived in the hearing in federal court gives §2254(e)(2) an implausibly narrow scope and will lead either to resultsthat Congress surely did not intend or to the distortion of other provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the law on “cause and prejudice.” See post, at 9–12 (opinion of SOTOMAYOR, J.).
Under AEDPA evidentiary hearings in federal court should be rare. The petitioner generally must have madea diligent effort to produce in state court the new evidence on which he seeks to rely. See §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 433–434 (2000). If that requirementis not satisfied, the petitioner may establish the factualpredicate for a claim in a federal-court hearing only if,among other things, “the facts underlying the claim would be sufficient to establish by clear and convincing evidencethat but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2254(e)(2)(B).

Alito adopts Judge Kozinski’s dissent from en banc opinion, and finds that an evidentiary hearing should not be held in this case.

I would hold that the federalcourt hearing should not have been held because respondent did not diligently present his new evidence to the California courts. And I join all but Part II of the opinion of the Court, as I agree that the decision of the state court represented a reasonable application of clearly established Supreme Court precedent in light of the state-court record.

Breyer concurring in part, dissenting part (not in Judgment)

Breyer’s two-page opinion spells out (thankfully) what he joins, and what he does not join.

I join Parts I and II of the Court’s opinion. I do not joinPart III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.

So even though Breyer would not reverse and remand under the terms the Majority does, he does wish to reverse the case. However, he agrees with the Court’s approach, even if he does not join the judgment.

Sotomayor Dissent Part I

Sotomayor wrote a 41 page dissent. Justice Alito agrees, but did not join, Part I of the dissent.

Under the Court’s novel interpretation of §2254(d)(1), however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner hassatisfied §2254(d)(1)’s threshold obstacle to federal habeasrelief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In readingthe statute to “compe[l]” this harsh result, ante, at 9, the Court ignores a key textual difference between§§2254(d)(1) and 2254(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the §2254(d)(1) inquiry. I therefore dissent from the Court’s first holding.

Note that the dissent is not “respectful.”

However, at the end, she “respectfully dissent[s].”

I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of §2254(d)(1) for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present thatevidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffectiveassistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would havediscovered. I respectfully dissent.

The Court first holds that, in determining whether astate-court decision is an unreasonable application of Supreme Court precedent under §2254(d)(1), “review . . . is limited to the record that was before the state court that adjudicated the claim on the merits.” Ante, at 9. New evidence adduced at a federal evidentiary hearing isnow irrelevant to determining whether a petitioner hassatisfied §2254(d)(1). This holding is unnecessary to promote AEDPA’s purposes, and it is inconsistent with theprovision’s text, the structure of the statute, and ourprecedents.
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To understand the significance of the majority’s holding,it is important to view the issue in context. AEDPA’s entire structure—which gives state courts the opportunityto decide factual and legal questions in the first instance—ensures that evidentiary hearings in federal habeas proceedings are very rare.
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These considerations lead me to agree with the courts ofappeals that have concluded that a federal court should assess the reasonableness of a state court’s application of clearly established federal law under §2254(d)(1) in lightof evidence properly admitted in a federal evidentiary hearing.

Sotomayor Dissent Part II

Justice Ginsburg and Kagan joined this opinion.

Sotomayor explicitly disagrees with the Majority’s Part III in Part II of her dissent (joined by Ginsburg and Kagan).

I also disagree with the Court that, even if the §2254(d)(1) analysis is limited to the state-court record,respondent Scott Pinholster failed to demonstrate that theCalifornia Supreme Court’s decision denying his ineffec tive-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U. S. 668 (1984). There is no reason for the majority to decide whether the §2254(d)(1) analysis is limited to the statecourt record because Pinholster satisfied §2254(d)(1) oneither the state- or federal-court record.

Sotomayor Dissent Part III

This part is all Sotomayor, she wrote for herself.

The state-court record on its own was more than adequate to support the Court of Appeals’ conclusion that the California Supreme Court could not reasonably have rejected Pinholster’s Strickland claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion.

We know, all too well, that the theories of Keynes are practiced and preached at the legislative and executive branches. But what about the Courts? In Winn, there was some discussion about the role of government spending and taxing, and how that encourages productivity.

Justice Kennedy, in a somewhat Keynesian position, somewhat Free-Market position, writes.

When a government expends resources ordeclines to impose a tax, its budget does not necessarilysuffer. On the contrary, the purpose of many governmental expenditures and tax benefits is “to spur economic activity, which in turn increases government revenues.” . . . Because it encourages scholarships for attendance at private schools, the STO tax credit may not cause the State to incur any financial loss

Tax credits, in contrast to tax expenditures, lack  Keynsian spending binges. The Arizona Program, is much more free market oriented (putting aside all issues of First Amendment and tax payer standing).

Justice Kagan rejects this position in a footnote.

The majority observes that special tax benefits may in fact “increas[e] government revenues” by “spur[ring] economic activity.” Ante, at 8 (internal quotation marks omitted). That may be so in the longrun (although the only non-speculative effect is to immediately diminish funds in the public treasury). But as the majority acknowledges, ibid., this possibility holds just as true for appropriations; that is why we (optimistically) refer to some government outlays as “investments.”The insight therefore cannot help the majority distinguish between tax expenditures and appropriations.

A Laffer curve may help resolve what the short-term reactions to expenditures/credits are. I am not so optimistic to refer to government spending as an “investment,” but rather as a transfer of wealth.

In perhaps the most free market oriented position in Kenendy’s opinion was this missive about who owns money.

Like contributions that lead to charitable tax deductions, contributions yielding STO tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations. Respondents’ contraryposition assumes that income should be treated as if itwere government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence.

This is why I dislike the withholding tax. Prepaying taxes to the government, before an actual bill (in the form of a tax return) is assessed, creates the false illusion that the money is the government’s. It is not. Until the bill is assessed, it belongs to the taxpayer. Prepaying taxes merely gives the government and interest free loan until that date, not to mention, totally distorting normal conceptions of what is private property and what is government property.

Justice Kagan, quite proud of her Jewish Heritage, and celebration of Christmas at a Chinese restaurant, casually used the word “Jews” to refer to Jewish people in Winn.

Consider some further examples of the point, but this time concerning state funding of religion. Suppose a Statedesires to reward Jews—by, say, $500 per year—for their religious devotion. Should the nature of taxpayers’ con-cern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend?

Is it kosher (pun intended) to simply refer to “Jewish people” as Jews in this fashion? I personally don’t mind, and use this term all the time, though I know some in older generations may take umbrage. Is it OK now that the Court uses such phrasing?

I did a quick U.S. search for “Jews” and got 116 hits. The term was used in, inter alia, CLS v. Martinez, McCreary County v. ACLU, and Van Orden v. Perry. I suppose it is mainstream enough?

I guess Justice Kagan was correct when she said we are all originalist now. For those keeping count, Kagan used the word “Madison” 12 times in her twenty-four page opinion in Winn.

It is interesting to dissect the differing takes on James Madison’s Memorial and Remonstrance from Justice Kenendy’s majority opinion in Winn and Justice Kagan’s dissenting opinion. In fact, Kagan accuses Kennedy of “betray[ing] Madison’s vision.” Yikes.

Justice Kennedy wrote:

In the Memorial and Remonstrance, Madison objected tothe proposed assessment on the ground that it would coerce a form of religious devotion in violation of conscience. In Madison’s view, government should not “‘forcea citizen to contribute three pence only of his property forthe support of any one establishment.’” Flast, supra, at 103 (quoting 2 Writings of James Madison 183, 186 (G.Hunt ed. 1901)). This Madisonian prohibition does notdepend on the amount of property conscripted for sectarian ends. Any such taking, even one amounting to “threepence only,” violates conscience. 392 U. S., at 103; cf. supra, at 6–7. The proposed bill ultimately died in committee; and the General Assembly instead enacted legislation forbidding “compelled” support of religion. See A Bill for Establishing Religious Freedom, reprinted in 2 Papersof Thomas Jefferson 545–546 (J. Boyd ed. 1950); see also Flast, 392 U. S., at 104, n. 24. Madison himself went on to become, as Flast put it, “the leading architect of the religion clauses of the First Amendment.” Id., at 103. Flast was thus informed by “the specific evils” identified in thepublic arguments of “those who drafted the Establishment Clause and fought for its adoption.” Id., at 103–104; see also Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 351 (2002) (“[T]he Framers’ generation worried that conscience would be violatedif citizens were required to pay taxes to support religious institutions with whose beliefs they disagreed”); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 936–939 (1986).

Kagan differs:

Indeed, the VirginiaAssessment was specifically “designed to avoid any charges of coercion of dissenters to pay taxes to support religious teachings with which they disagreed.” Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 383 (2002).

In this respect, the Virginia Assessment is just like theArizona tax credit. Although both funnel tax funds to religious organizations (and so saddle all taxpayers withthe cost), neither forces any given taxpayer to pay for the subsidy out of her pocket. Madison thought that feature ofthe Assessment insufficient to save it. By relying on theselfsame aspect of the Arizona scheme to deny the Plaintiffs’ claim of injury, the majority betrays Madison’s vision.

Ouch.

Back in November after oral arguments, I quipped that “Winn will fail.” Today, we see thatWinn in fact, did not win. #notwinning. Justice Kennedy, writing for a 5 member majority, found that the challengers lacked standing under Flast v. Cohen to challenge the tax credit, since it was not a governmental expenditure. Justice Scalia concurred in judgment, joined by Justice Thomas. Justice Kagan wrote the dissent for Ginsburg, Breyer, and Sotomayor. I think this is Kagan’s first prominent 5-4 dissent.

I will update this post as I make my way through the opinion.

Majority Opinion

From the syllabus, we see that the challengers do not fall within the “narrow” Flast exception.

The STO tax credit does not visit the injury identified in Flast. When the Government spends funds from the General Treasury, dissentingtaxpayers know that they have been made to contribute to an establishment in violation of conscience. In contrast, a tax credit allows dissenting taxpayers to use their own funds in accordance with their own consciences. Here, the STO tax credit does not “extrac[t] and spen[d]” a conscientious dissenter’s funds in service of an establishment, 392 U. S., at 106, or “ ‘force a citizen to contribute’ ” to a sectarian organization, id., at 103. Rather, taxpayers are free to pay theirown tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations. Because the STO tax credit is not tantamount to a religious tax, respondents have not alleged an injury for standing purposes. Furthermore, respondents cannot satisfy the requirements of causation and redressability. When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth; the resulting subsidy of religious activity is, under Flast, traceable to the government’s expenditures; and an injunctionagainst those expenditures would address taxpayer-plaintiffs’ objections of conscience. Here, by contrast, contributions result from the decisions of private taxpayers regarding their own funds. Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs. Any injury the objectors may suffer are not fairly traceable to the government. And, while an injunction most likely would reduce contributions to STOs, that remedywould not affect noncontributing taxpayers or their tax payments.Pp. 10–16.

Further, the Court rejected the position that because “Arizonans benefiting from the tax credit in effect are paying their state income tax to STOs,” “all income is government property, even if it has not come into the tax collector’s hands.”

This mirrors a comment that Justice Kennedy made during oral arguments:

JUSTICE KENNEDY: I’ll — I’ll give you credit, Mr. Bender. In your brief you say if you are wrong on that point that you are folding your tent and leaving, there’s –that there is no standing and that there’s no — no violation. But I must say, I have some difficulty that any money that the government doesn’t take from me is still the government’s money.

There is an interesting spin on economics in this opinion, and the role of taxes to stimulate economic productive.

Justice Kennedy, in a somewhat Keynesian position, writes.

When a government expends resources ordeclines to impose a tax, its budget does not necessarilysuffer. On the contrary, the purpose of many governmental expenditures and tax benefits is “to spur economicactivity, which in turn increases government revenues.” . . . Because it encourages scholarships for attendance at private schools, the STO tax credit may not cause the State to incur any financial loss

Justice Kagan rejects this position in a footnote.

The majority observes that special tax benefits may in fact “increas[e] government revenues” by “spur[ring] economic activity.” Ante, at 8 (internal quotation marks omitted). That may be so in the longrun (although the only non-speculative effect is to immediately diminish funds in the public treasury). But as the majority acknowledges, ibid., this possibility holds just as true for appropriations; that is whywe (optimistically) refer to some government outlays as “investments.”The insight therefore cannot help the majority distinguish between taxexpenditures and appropriations.

Justice Scalia’s Concurring Opinion

Scalia one-page concurring opinion, joined by Justice Thomas makes a simple point—Flast is an outlier, and he would get rid of it:

Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution.

Justice Kagan’s Dissenting Opinion

Justice Kagan, in what I believe is her first significant 5-4 dissent, wrote a substantial 23 page opinion (the majority’s opinion was less than 20 pages). The thrust of her opinion is that accsess to federal courts is further constrained (continuing the Iqbal trope), and that now violations of the establishment clause will go unaddressed.

She opens in very powerful language, how the Court departs from four decades of Flast, whereby plaintiffs, with or without meritorious claims, had their day in Court.

For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violationof the Establishment Clause. Beginning in Flast v. Cohen, 392 U. S. 83 (1968), and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one. Not every suit hassucceeded on the merits, or should have. But every taxpayer-plaintiff has had her day in court to contest thegovernment’s financing of religious activity.
Today, the Court breaks from this precedent by refusing to hear taxpayers’ claims that the government has unconstitutionally subsidized religion through its tax system.These litigants lack standing, the majority holds, becausethe funding of religion they challenge comes from a tax credit, rather than an appropriation. A tax credit, the Court asserts, does not injure objecting taxpayers, becauseit “does not extract and spend [their] funds in service of anestablishment.” Ante, at 15 (internal quotation marks and alterations omitted).
. . .
In not a single non-trivial respect could the Flast Court recognize its handiwork in the majority’s depiction.

Kagan rejects the Majority’s distinction between tax appropriations and tax credits/expenditures, and laments that today’s opinion will enable legislatures to “end-run Flast’s guarantee of access to the Judiciary.”

This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose stateaid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity.And so either way, taxpayers should be able to challenge the subsidy.
Still worse, the Court’s arbitrary distinction threatens toeliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely becauseappropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government toend-run Flast’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule—subsidize through the tax system—to preclude taxpayer challenges to state funding of religion.

Curiously, Justice Kagan uses the example of bank bailouts, an example that surely likely appeals to supporters of the Tax Credit, to illustrate this “distinction . . . in search of a difference.”

To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides itshould pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, thatmany millions of taxpayers oppose this bailout on theground (whether right or wrong is immaterial) that it usestheir hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members ofCongress make the following proposal: Rather than givethe money to banks via appropriations, the Governmentwill allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; in deed, we would think the less of our countrymen if theyfailed to see through this cynical proposal

In very ominous language, Kagan signals the “effective demise of taxpayer standing.”

And that result—the effective demise of taxpayer standing—will diminish the Establishment Clause’s force andmeaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore willprevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality. Because I believe these challenges warrant consideration on the merits, I respectfully dissent from the Court’s decision.

Kagan’s concluding paragraph sounds a similarly alarmist tone.

Today’s decision devastates taxpayer standing in Establishment Clause cases. The government, after all, oftenuses tax expenditures to subsidize favored persons and activities. Still more, the government almost always has this option. Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a taxbreak tomorrow. The Court’s opinion thus offers a roadmap—more truly, just a one-step instruction—to anygovernment that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way.No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting anestablishment of religion”—ten simple words that have stood for over 200 years as a foundation stone of Americanreligious liberty. Ten words that this Court has longunderstood, as James Madison did, to limit (though by no means eliminate) the government’s power to finance religious activity. The Court’s ruling today will not shield all state subsidies for religion from review; as the Court notes, some persons alleging Establishment Clause violations have suffered individualized injuries, and therefore have standing, independent of their taxpayer status. See ante, at 1–2, 17–18. But Flast arose because “the taxingand spending power [may] be used to favor one religionover another or to support religion in general,” 392 U. S., at 103, without causing particularized harm to discrete persons. It arose because state sponsorship of religionsometimes harms individuals only (but this “only” is no small matter) in their capacity as contributing members of our national community. In those cases, the Flast Court thought, our Constitution’s guarantee of religious neutrality still should be enforced