Doremus v. Board of Education/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice REED and Mr. Justice BURTON concur, dissenting.

I think this case deserves a decision on the merits. There is no group more interested in the operation and management of the public schools than the taxpayers who support them and the parents whose children attend them. Certainly a suit by all the taxpayers to enjoin a practice authorized by the school board would be a suit by vital parties in interest. They would not be able to show, any more than the two present taxpayers have done, that the reading of the Bible adds to the taxes they pay. But if they were right in their contentions on the merits, they would establish that their public schools were being deflected from the educational program for which the taxes were raised. That seems to me to be an adequate interest for the maintenance of this suit by all the taxpayers. If all can do it, there is no apparent reason why less than all may not, the interest being the same. In the present case the issues are not feigned; the suit is not collusive; the mismanagement of the school system that is alleged is clear and plain.

If this were a suit to enjoin a federal law, it could not be maintained by reason of Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078. But New Jersey can fashion her own rules governing the institution of suits in her courts. If she wants to give these taxpayers the status to sue (by analogy to the right of shareholders to enjoin ultra vires acts of their corporation) I see nothing in the Constitution to prevent it. And where the clash of interests is as real and as strong as it is here, it is odd indeed to hold there is no case or controversy within the meaning of art. III, § 2 of the Constitution.