How Do I Overturn Thee? Let Me Count the Ways

Tomorrow morning, the United States Supreme Court will hear one of the most important education cases in a generation: the appeal of a 9th Circuit ruling that would cripple or end Arizona's k-12 scholarship tax credit program.

As you'd expect, commentators aren't sure how the Supreme Court will ultimately rule: it may decide to overturn the 9th Circuit on the merits of the case, or it could overturn the 9th Circuit on the grounds that the plaintiffs never had standing to sue in the first place. Heck, there might even be people who think SCOTUS will uphold the lower court's ruling... can't actually find anyone who thinks that, but they could be out there... somewhere.

On the merits, the law and evidence are clear. Arizona's program allows private individuals to donate to non-profit k-12 scholarship organizations and get a tax credit when they do--much as federal tax deductions are available for donations to non-profit charities. Since federal deductions for donations to religious organizations are Constitutional, the same applies to the credits in the AZ case. Respondents (those trying to kill the program) didn't marshal a serious argument to the contrary. In fact, one of the cases they cite actually eviscerates their own argument, as I noted in Section II (b) of the Cato Institute Winn brief co-written by Ilya Shapiro and myself.

The rest of Respondents' merits arguments are equally ineffectual, not only taking a form (relying on a moving statistical target) that has already been explicitly rejected by the Supreme Court in Zelman and elsewhere, but actually being wrong on the facts as well (see Section IV of the Cato brief linked above).

But while I've been exclusively focused on the merits of the case, it seems that the legal experts defending Arizona's tax credit program have been arguing that the Respondents (originally, the Plaintiffs) never had a right to sue in the first place ("standing"), because they cannot show, in the context of Supreme Court precedents, how they have been harmed.

Both the SCOTUS blog's reporter and independent experts seem to think the Court will overturn the 9th Circuit on the standing issue before even considering the merits, and I'm confident that the Court will overturn on the merits if it ever gets that far.

If the ruling comes down in either of those ways, modern education tax credit programs will retain their perfect record of never having been overturned by a court--a record not enjoyed by any other private school choice policy. The reason that is so very important is explained in the final section (V) of our Cato brief.