Judicial Power Outlines
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Separation of Powers IV - Judicial Limitations

I.     "A dispute comes to me." (Responsive, not intitiative.)

A.     "Case or controversy" requirement.

1.     Law of Nature.

a.     If the parties have no actual dispute which they bring to the court, the judge has nothing to act upon, and the case is not justiciable.

b.     Justiciability requires the existence of a dispute which is capable of judicial resolution. Principle: the dispute must be brought to the judge, the judge cannot manufacture disputes for the purpose of issuing a ruling.

2.     Modern view.

a.     Whether a case is "justiciable" depends on whether there is a genuine dispute which needs judicial resolution.

b.     But, is judicial power a matter of necessity, and is necessity governed by law?

3.     Flast v. Cohen. "We don't know what we're doing, or why."

B.     "Ripeness."

1.     Law of Nature. Before plaintiff can litigate a claim, the defendant must have already committed a legal wrong. Plaintiff may not seek merely to prevent defendant from committing a future legal wrong.

a.     Until defendant has committed a legal wrong (such as enforcing an unconstitutional law), there is no legal dispute.

b.     Principle: God has not given us authority to punish wrongs which have not yet occurred, nor to prevent future wrongs - this is presumption.

c.     Contrary to most injunctive and/or declaratory relief, in essence.

2.     Modern view.

a.     A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e., may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm.

b.     Problem: Modern focus is on harm to the plaintiff, not the wrongdoing of the defendant. A plaintiff can be threatened with harm in the absence of any wrongdoing by defendant.

3.     Cases.

a.     Mitchell.

1)     Links ripeness w/ prohibition against advisory opinions.

2)     Ripeness depends on an actual dispute, i.e., actual interference with rights.

3)     Advisory opinion => will, not judgment.

b.     Poe v. Ullman.

1)     Each court's jurisdiction must stand on its own merits.

2)     Q: Is ripeness a matter of judicial policy (discretionary), or law (obligatory)?

c.     Younger v. Harris

1)     Actual interference (dispute) w/ rights must be present.

d.     Lyons

1)     Q: A question of ripeness, or standing?

2)     Majority: Dispute exists as to past acts, but not as to future potential acts.

3)     - Likelihood of future actual dispute is remote.

4)     - Justiciability is severable as to each issue.

5)     - A question of ripeness.

6)     Dissent: Dispute exists over the policy, not merely the acts.

7)     - A question of standing. But, does plaintiff have standing to dispute the policy?

8)     Justiciability is aggregated for all issues in one case (similar to consideration for contracts).

C.     "Mootness."

1.     Law of Nature. A dispute once existed, but is now over (finally resolved). There is nothing left for the court to judge.

2.     Modern view.

a.     Unless a real controversy exists at all stages of review, the matter is moot. However, controversies capable of repetition but evading review are not moot.

b.     Problem: How can an act of actual wrongdoing evade review?

3.     DeFunis v. Odegaard.

a.     Quote.

b.     A very conservative view of mootness - the Court seemed to be afraid of the issue.

c.     Dissent: Views court opinion as a rule, not an order.

4.     Note how Roe v. Wade and similar privacy cases "stretched" the standing rules to enable the Court to hear the case.

D.     "Abstention." [Peculiar to federal courts.]

1.     Law of Nature. Federal courts cannot decide legal issues over which state courts have exclusive jurisdiction, as determined by the law of federalism.

2.     Modern view.

a.     A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

b.     Problem: Modern view presumes a federal court can determine when state law questions are "settled," that it can remand a case to state court for "settling," and that federal constitutional rights may depend on matters of state law.

3.     Pennzoil v. Texaco, Inc. (1987). Court held that lower federal courts should have abstained from enjoining enforcement of a state judgment in a case where an appeal is still pending in state court.

a.     Powell: Abstention is required by principles of federalism.

b.     Brennan & Marshall: State court judgments can be reviewed only by the S.Ct., not by lower federal courts.

II.     "I judge between a man and his neighbor." (Orders, not rules.)

A.     "Adequate and independent state grounds."

1.     Law of Nature. A federal court order which may be preempted by a state court order (w/regard to exclusively state law matters) is not binding, and should not be issued.

a.     Federalism: federal courts decide federal law, state courts decide state law. Some matters are exclusively for states to resolve.

b.     Historically, federal court jurisdiction was limited to federal issues, and to state cases which held against the constitution or laws of the U.S.

2.     Modern view. A federal court will not exercise jurisdiction over a state court judgment based on adequate and independent state law grounds - even if federal issues are involved. But, if the state court has not clearly indicated the state law basis for its decision, a federal court may hear the case.

3.     Michigan v. Long.

a.     "Respect for independence of state courts." - federalism.

b.     "Avoidance of advisory opinions." - judicial power.

c.     But, courts will now inquire whether state law rests on federal law.

- Doesn't this beg the question?

- Why might a state use federal law in construing state constitution? Legally binding on states, or merely morally persuasive, i.e., stare decisis issue.

d.     Consider O'Connor's footnote:

1)     Characterizes historical position as "novel."

2)     Assumes Bill of Rights is controlling in state criminal cases.

e.     Steven's dissent: Policy of uniformity in constitutional interpretation is unwise.

B.     "No advisory opinions."

1.     Law of Nature.

a.     Judicial rulings are orders which must be obeyed under penalty of contempt. An advisory opinion is not binding and should not be issued.

b.     Linked to "ripeness" - no dispute exists to which an order can apply.

2.     Modern view. The court cannot issue an opinion unless a case involves specific present harm or the threat of specific future harm.

3.     Cases. None.

C.     "Standing." Is this a proper party to the suit?

1.     Law of Nature. To have "standing" to sue, plaintiff must have suffered actual injury or harm.

2.     "Conventional" standing. A person must have a "concrete stake" in the outcome of a case.

a.     Plaintiff must show that there has been or will be a direct and personal injury caused by the allegedly unlawful government action, which affects rights under the Constitution or federal law. The injury need not be economic.

b.     A decision in the litigant's favor must be capable of eliminating the grievance.

c.     Warth v. Seldin (1975). Court held petitioners lacked standing to bring suit against city alleged to exclude residents of low or moderate income.

1)     Quote.

2)     A personal stake.

3)     Must construe complaint in favor of complaining party.

4)     Dissents: Want to hear the issues.

d.     Village of Arlington Heights (1977).

1)     Standing does not require economic injury.

2)     plaintiff Ransom: his quest for housing.

e.     A plaintiff may have standing to enforce a federal statute if she is within the "zone of interests" Congress meant to protect.

Comment: Standing is a question of judicial limitations, not personal federal rights. The fact that a person is within Congress' intended protection zone does not mean that plaintiff has suffered actual injury or harm.

3.     Third party standing.

a.     Generally, one cannot assert the constitutional rights of others, unless: a) it is difficult for the third party to assert their own rights; or b) a special relationship exists between claimant and the third party.

Comment: 1) The "actual harm or injury" requirement precludes vicarious standing; and 2) "difficulty" in asserting rights is a matter of convenience, not law. Q: What kind of special relationships apply?

b.     An organization has standing if: (a) there is an injury in fact to its members; (b) the injury is related to the organization's purpose; and (c) individual member participation in the lawsuit is not required.

Comment: There is no vicarious standing. Also, how can a plaintiff's participation "not be required" - is this a matter of law or of convenience?

c.     Craig v. Boren (1976). S.Ct. upholds standing of beer vendor to challenge a state law discriminating against males age 18-20.

4.     Taxpayer-citizen standing.

a.     Taxpayers have no standing to challenge gov't. expenditures except when based on the Establishment Clause.

Comment: There is no constitutional basis for an Establishment Clause exception.

b.     Lujan v. Defenders of Wildlife (1992). Court denied that a statutory "right" of citizens to have the executive branch observe the procedural aspects of the Endangered Species Act constituted an "injury in fact" sufficient to confer standing.

III.     "I make known the laws of God." (Judgment, not will.)

A.     "Political questions."

1.     Law of Nature. Since judicial power is limited to discovery of the law, a court cannot exercise legal review of matters which are committed to the political discretion of another branch of government.

2.     Modern view. Political questions will not be decided. These are issues (i) constitutionally committed to another branch of government, and (ii) inherently incapable of judicial resolution.

a.     Political Questions: The "Republican Form of Government Clause;" Congressional procedures for ratifying constitutional amendments; and the President's conduct of foreign policy.

b.     Nonpolitical Questions: Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications.

c.     Comment: Republican form of government is not political, and legislative apportionment is political.

3.     Cases.

a.     John Marshall: Marbury.

b.     Baker v. Carr.

1)     Reapportionment of state legislatures is not political.

2)     Nonjusticiability is derived from separation of powers doctrine.

3)     Does the court use a 'law v. politics' analysis? 'Subject matter' analysis? 'Facts and circumstances' test? What is the rule of law?

c.     Powell v. McCormack.

1)     Exclusion of House members for failing to meet qualifications is not a political question.

2)     Q: What result if Powell had been expelled by a 2/3 vote for misbehavior?

d.     Goldwater v. Carter.

1)     Powell: a ripeness issue, not a political question. He would hear the case if it came up later.

2)     Rehnquist: a political question involving the discretionary powers of the President.

3)     Brennan: "Who has discretion" is a legal question => justiciable. Whether that discretion has been properly exercised is a political question => nonjusticiable.