Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice John Marshall in Cohens v. Virginia:1 “In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends ‘all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’ This cause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended ‘controversies between two or more states, between a state and citizens of another state,’ and ‘between a state and foreign states, citizens or subjects.’ If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.” 2

Judicial power is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” 3 The meaning attached to the terms “cases” and “controversies” 4 determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights “in a form prescribed by law.” 5 “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.” 6

Chief Justice Charles Evans Hughes once essayed a definition, which, however, presents a substantial problem of labels. “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” 7 Of the “case” and “controversy” requirement, Chief Justice Earl Warren admitted that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the Judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.” 8 Justice Felix Frankfurter perhaps best captured the flavor of the “case” and “controversy” requirement by noting that it takes the “expert feel of lawyers” often to note it.9

From these quotations may be isolated several factors which, in one degree or another, go to make up a “case” and “controversy.”

Almost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.” 10 A party cannot maintain a suit “for a mere declaration in the air.” 11 In Texas v. ICC,12 the State attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.” 13 And in Ashwander v. TVA,14 the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company. “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining.” 15

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,16 an omnibus attack on the constitutionality of the Hatch Act prohibitions on political activities by governmental employees. With one exception, none of the plaintiffs had violated the Act, though they stated they desired to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for “concrete legal issues, presented in actual cases, not abstractions,” and seeing the suit as really an attack on the political expediency of the Act.17

Footnotes

1

19 U.S. (6 Wheat.) 264 (1821).

2

19 U.S. at 378.

3

Muskrat v. United States, 219 U.S. 346, 356 (1911).

4

The two terms may be used interchangeably, inasmuch as a “controversy,” if distinguishable from a “case” at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).

5

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

6

In re Pac. Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). See also Smith v. Adams, 130 U.S. 167, 173–174 (1889).

7

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937). Cf. Pub. Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952).

8

Flast v. Cohen, 392 U.S. 83, 94–95 (1968).

9

“The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or controversy.’” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).

10

Ala. State Fed’n of Lab. v. McAdory, 325 U.S. 450, 461 (1945).

11

Giles v. Harris, 189 U.S. 475, 486 (1903).

12

258 U.S. 158 (1922).

13

Id. at 162.

14

297 U.S. 288 (1936).

15

297 U.S. at 324. Chief Justice Charles Evans Hughes cited New York v. Illinois, 274 U.S. 488 (1927), in which the Court dismissed as presenting abstract questions a suit about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484–485 (1923); New Jersey v. Sargent, 269 U.S. 328, 338–340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 76 (1868).

16

330 U.S. 75 (1947).

17

330 U.S. at 89–91. Justices Hugo Black and William Douglas dissented, contending that the controversy was justiciable. Justice William Douglas could not agree that the plaintiffs should have to violate the act and lose their jobs in order to test their rights. In CSC v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).