In questioning of Neal Katyal, representing the government as a third party, Justices Ginsburg and Breyer struggled with his view that taxpayer standing (carved out in Flast) is now so severely limited that it does not apply in this case, or in most any case that doesn't follow the facts in Flast precisely.
GENERAL KATYAL: The way this scheme is set up, our answer is no. And I think that accords with this Court's general reluctance to confer taxpayer standing in this area.
JUSTICE GINSBURG: And if we leave out the fine points that you were discussing, isn't the underlying premise of Flast v. Cohen that the Establishment Clause will be unenforceable unless we recognize taxpayer standing?
GENERAL KATYAL: I don't see that, Justice Ginsburg, in Flast. I think Flast is a very narrow exception for when someone's dollars are being taken out of their pocket and spent by the government on religion, and I don't think that's happening here.
JUSTICE BREYER: Flast is gone; is that right? Flast is gone. There is no more -- there is nothing more to Flast, because it just happened that nobody had thought of this system at the time of Flast.
GENERAL KATYAL: Justice Breyer -
JUSTICE BREYER: If they had, they could have -- what?
GENERAL KATYAL: Justice Breyer, I don't think Flast is gone at all when there is direct government outlays to spend on religion like Flast.
JUSTICE BREYER: No, but there needn't be, because all you have to do to get around it is to create what we have here.
GENERAL KATYAL: Well, I do think that that can get around it, that can get around it in some circumstances, and again, those who are underincluded in a government program may have standing, not as a taxpayer.
