Whether the office or its programs actually run afoul of the Constitution was not before the justices.
But any notion that this jurisdictional question was the sort of arcane, technical issue that only a law professor could love was quickly dispelled by the intensity of the argument, one of the liveliest of the term.
The fast-paced hour ended with the clear impression that the Roberts court will soon put its own stamp on the law of taxpayer standing, with potentially significant implications for the relationship between government and religion.
The real question by the end of the argument was whether a majority would be content simply to scale back a Warren court precedent that allows taxpayers to challenge the use of public money for religious purposes or whether the court would disavow the precedent altogether and keep such suits out of federal court.
Solicitor General Paul D. Clement revealed his hand slowly, bringing his argument to a pinpoint landing at the precise close of a three-minute rebuttal. If the justices could not see their way to applying the precedent narrowly, Mr. Clement said, the court should simply overrule it. “If something has to go in this area,” he said, “I think it’s an easy choice.”
Under either option the administration advocated, the court would reject a suit that the federal appeals court in Chicago reinstated last year, a challenge to conferences that Bush administration officials have held to advise religious groups on how to apply for federal grants as part of the effort to bolster the role of such groups in social service programs.
The plaintiff is the Freedom From Religion Foundation Inc. of Madison, Wis., which advocates strict separation of church and state. In a complaint filed initially in 2004, the organization argued that officials who convened and addressed the conferences used congressionally appropriated money in a way that “violated the fundamental principle of the separation of church and state.”
Under the ordinary doctrine of “standing,” which defines who may bring a suit, people who object to a government policy but who cannot claim a concrete injury from that policy have no right to sue. But in a 1968 decision, the court carved out an exception for religion cases. The case, Flast v. Cohen, gave taxpayers standing to challenge federal laws that authorized expenditures for purposes alleged to violate the First Amendment prohibition against the “establishment” of religion.
The administration position in the case argued on Wednesday, Hein v. Freedom From Religion Foundation Inc., No. 06-157, is that the Flast decision should be understood to include two limitations. First, Mr. Clement said, taxpayers should be limited to challenging Congressional statutes, not executive branch programs like that in this suit. Second, the solicitor general argued, taxpayers should be able to challenge only spending outside the government, not internal spending like that cited by the Freedom From Religion Foundation.
Did that mean, Justice Antonin Scalia asked Mr. Clement, taxpayers could challenge a statute that gave money to outside groups to build churches, but not one that directed the government to build its own church?
It was a “horrible hypothetical,” Mr. Clement replied, but Justice Scalia had understood him correctly: taxpayers should not have standing to challenge “an internal government church.”
Andrew J. Pincus, representing the foundation, told the court there was “no basis for drawing the arbitrary lines that the government suggests.” The Flast decision did not include such limitations, he said.
Mr. Clement was unruffled as the justices tossed various hypothetical questions his way. Could a taxpayer challenge a law that commemorated the Pilgrims “by building a government church at Plymouth Rock where we will have the regular worship in the Puritan religion?” Justice Stephen G. Breyer asked.
“I would say no,” Mr. Clement said.
Justice Breyer persisted, asking about a law requiring the government to build churches “all over America” dedicated to one particular sect. “Nobody could challenge it?” he asked.
“There would not be taxpayer standing,” Mr. Clement replied.
Chief Justice John G. Roberts Jr. observed that members of other denominations would not need taxpayer standing and that as victims of government discrimination, they could sue under ordinary principles of standing. This was one of the times the chief justice intervened to make the point that in practical application the government’s position was perhaps not as extreme as it sounded.
His interventions in the other side’s argument seemed to have the opposite goal, rejecting Mr. Pincus’s effort to depict his client’s position as modest. When Mr. Pincus said taxpayers should not be permitted to challenge merely “incidental” spending, the chief justice said that was no real limitation because it would ensnare the courts in deciding “whether the activity you’re challenging is incidental or not.”
Mr. Pincus denied that this initial inquiry would make much work for the courts. For example, he began, “if someone’s claim is that people in the White House have five meetings in the course of a year that they’re upset about — — ”
Chief Justice Roberts cut him off, saying, “Well, then, five meetings isn’t enough. How many?”
“What about 10?” Justice Scalia offered.
“Twenty?” the chief justice asked.
“We’ll litigate it,” Justice Scalia said. “We’ll figure out a number eventually, I’m sure.”
For Mr. Clement, the most helpful hand was that of Justice Samuel A. Alito Jr. As the solicitor general batted back tricky hypothetical questions, Justice Alito asked him whether the lines he was drawing “make a lot of sense in an abstract sense” or were “the best that can be done” under existing precedents.
“The latter, Justice Alito,” Mr. Clement said, evoking laughter. “I appreciate the question.”