Clause 1

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 Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

JUDICIAL POWER AND JURISDICTION-CASES AND CONTROVERSIES

The potential for abuse of judicial power was of concern to the Founding Fathers, leading them to establish limits on the circumstance in which the courts could consider cases. When, late in the Convention, a delegate proposed to extend the judicial power beyond the consideration of laws and treaties to include cases arising under the Constitution, Madison’s notes captured these concerns. “Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” Consequently, “[t]he motion of Docr. Johnson was agreed to nem : con : it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—.”359

This passage, and the language of Article III, § 2, makes clear that the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States, but rather preferred and provided for resolution of disputes arising in a “judicial” manner. This interpretation is reenforced by the refusal of the Convention to assign the judges the extra-judicial functions which some members of the Convention—Madison and Wilson notably—conceived for them. Thus, for instance, the Convention four times voted down proposals for judges, along with executive branch officials, to sit on a council of revision with the power to veto laws passed by Congress.360 A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President361 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.362 The intent of the Framers in rejecting the latter proposal was early effectuated when the Justices declined a request of President Washington to tender him advice respecting legal issues growing out of United States neutrality between England and France in 1793.363 Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans’ pensions364 bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsulated in a series of principles or doctrines, the application of which determines whether an issue is met for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in the expression of these principles and doctrines, and it is seldom easy to separate out the two strands.365

The Two Classes of Cases and Controversies

By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia:366 “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.”367

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.”368 The meaning attached to the terms “cases” and “controversies”369 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.”370 “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.”371

Chief Justice 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.”372 Of the “case” and “controversy” requirement, Chief Justice 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.”373 Justice 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.374

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

Adverse Litigants

The presence of adverse litigants with real interests to contend for is a standard which has been stressed in numerous cases,375 and the requirement implicates a number of complementary factors making up a justiciable suit. The requirement was one of the decisive factors, if not the decisive one, in Muskrat v. United States,376 in which the Court struck down a statute authorizing certain named Indians to bring a test suit against the United States to determine the validity of a law affecting the allocation of Indian lands. Attorney’s fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. “The judicial power,” said the Court, “. . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. . . . It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question.”377

Concerns regarding adversity also arise when the executive branch chooses to enforce, but not defend in court, federal statutes that it has concluded are unconstitutional. In United States v. Windsor,378 the Court considered the Defense of Marriage Act (DOMA), which excludes same-sex partners from the definition of “spouse” as used in federal statutes.379 DOMA was challenged by the surviving member of a same-sex couple (married in Canada), who was seeking to claim a spousal federal estate tax exemption. Although the executive branch continued to deny the exemption, it also declined to defend the statute based on doubts as to whether it would survive scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause. Consequently, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG)380 intervened to defend the statute. The Court held that, despite the decision not to defend, the failure of the United States to provide a refund to the taxpayer constituted an injury sufficient to establish standing, leaving only “prudential” limitations on judicial review at issue.

381 The Court concluded that the “prudential” concerns were outweighed by the presence of BLAG to offer an adversarial presentation of the issue, the legal uncertainty that would be caused by dismissing the case, and the concern that the executive branch’s assessment of the constitutionality of the statute would be immunized from judicial review.382

Collusive and Feigned Suits.

Adverse litigants are lacking in those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie,383 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person, and suit was instituted to decide the “dispute.” Declaring that “the whole proceeding was in contempt of the court, and highly reprehensible,” the Court observed: “The contract set out in the pleadings was made for the purpose of instituting this suit. . . . The plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to the suit. . . . And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision. . . .”384 “Whenever,” said the Court in another case, “in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”385 Yet several widely known constitutional decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were supervised and financed by one side.386 There are also instances in which there may not be in fact an adverse party at certain stages; that is, instances when the parties do not actually disagree, but where the Supreme Court and the lower courts are empowered to adjudicate.387

Stockholder Suits.

Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pollock v. Farmers’ Loan & Trust Co.,388 the Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the collection of any tax.389 Subsequently, the Court sustained jurisdiction in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks390 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional.391 Perhaps most notorious was Carter v. Carter Coal Co.,392 in which the president of the company brought suit against the company and its officials, among whom was Carter’s father, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits.393

Substantial Interest: Standing

Perhaps the most important element of the requirement of adverse parties may be found in the “complexities and vagaries” of the standing doctrine. “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.”394 The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”395 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. “[T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper—and properly limited— role of the courts in a democratic society.’ ”396

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions,397 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.398 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint, and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court’s generalizations and the results it achieves are often at variance.399

The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts.400

Generalized or Widespread Injuries.

Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing.401 “The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.”402

Notwithstanding that a generalized injury that all citizens share is insufficient to confer standing, where a plaintiff alleges that the defendant’s action injures him in “a concrete and personal way,” “it does not matter how many [other] persons have [also] been injured. . . . [W]here a harm is concrete, though widely shared, the Court has found injury in fact.”403

Taxpayer Suits.

Save for a narrow exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon,404 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those states that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer’s “interest in the moneys of the Treasury . . . is comparatively minute and indeterminate” and that “the effect upon future taxation, of any payment out of the funds . . . [is] remote, fluctuating and uncertain,” the Court ruled that plaintiff had failed to allege the type of “direct injury” necessary to confer standing.405

Taxpayers were found to have standing, however, in Flast v. Cohen,406 to contest the expenditure of federal moneys to assist religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means that a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, § 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means that the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the Establishment Clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, but Frothingham did not, having alleged only that the Tenth Amendment had been exceeded. The Court reserved the question whether other specific limitations constrain the Taxing and Spending Clause in the same manner as the Establishment Clause.407

Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status.408 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under valid legislation and because the property transfer was not pursuant to a Taxing and Spending Clause exercise but was taken under the Property Clause of Article IV, § 3, cl. 2.409 The Court also refused to create an exception for Commerce Clause violations to the general prohibition on taxpayer standing.410

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the expenditure of funds that is challenged was not specifically authorized by Congress, but came from general executive branch appropriations.411

Where expenditures “were not expressly authorized or mandated by any specific congressional enactment,” a lawsuit challenging them “is not directed at an exercise of congressional power and thus lacks the requisite ‘logical nexus’ between taxpayer status ‘and the type of legislative enactment attacked.’ ”412

Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education,413 a municipal taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools.414 But, in Doremus v. Board of Education,415 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. The taxpayer’s action in Doremus, the Court wrote, “is not a direct dollars-and-cents injury but is a religious difference.”416 This rationale was similar to the spending program-regulatory program distinction of Flast. But, even a dollar-and-cents injury resulting from a state spending program will apparently not constitute a direct dollars-and-cents injury. The Court in Doremus wrote that a taxpayer challenging either a federal or a state statute “must be able to show not only that the statute is invalid but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”417

Constitutional Standards: Injury in Fact, Causation, and Redressability.

Although the Court has been inconsistent, it has now settled upon the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have: 1) suffered some actual or threatened injury; 2) that injury can fairly be traced to the challenged action of the defendant; and 3) that the injury is likely to be redressed by a favorable decision.418

For a time, the actual or threatened injury requirement noted above included an additional requirement that such injury be the product of “a wrong which directly results in the violation of a legal right.”419 In other words, the injury needs to be “one of property, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege.”420 It became apparent, however, that the “legal right” language was “demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.”421 Despite this test, the observable tendency of the Court was to find standing in cases which were grounded in injuries far removed from property rights.422

In any event, the “legal rights” language has now been dispensed with. Rejection of this doctrine occurred in two administrative law cases in which the Court announced that parties had standing when they suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.423 Political,424 environmental, aesthetic, and social interests, when impaired, now afford a basis for making constitutional attacks upon governmental action.425 “But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”426 Moreover, while Congress has the power to define injuries and articulate “chains of causation” that will give rise to a case or controversy, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize a person to sue to vindicate that right.”427

The breadth of the “injury-in-fact” concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices, even where discriminatory action was not directed against parties to a suit, Theses case held that the subjective and intangible interests of enjoying the benefits of living in integrated communities were sufficient to permit them to attack actions that threatened or harmed those interests.428 Or, there is important case of FEC v. Akins,429 which addresses the ability of Congress to confer standing and to remove prudential constraints on judicial review. Congress had afforded persons access to Commission information and had authorized “any person aggrieved” by the actions of the FEC to sue. The Court found “injury-in-fact” present where plaintiff voters alleged that the Federal Election Commission had denied them information respecting an organization that might or might not be a political action committee.430 Another area where the Court has interpreted this term liberally are injuries to the interests of individuals and associations of individuals who use the environment, affording them standing to challenge actions that threatened those environmental conditions.431

Even citizens who bring qui tam actions under the False Claims Act—actions that entitle the plaintiff (“relator”) to a percentage of any civil penalty assessed for violation—have been held to have standing, on the theory that the government has assigned a portion of its damages claim to the plaintiff, and the assignee of a claim has standing to assert the injury in fact suffered by the assignor.432 Citing this holding and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the litigation to the assignor.433 The Court noted that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; and so forth.”434

Beyond these historical anomalies, the Court has indicated that, for parties lacking an individualized injury to seek judicial relief on behalf of an absent third party, there generally must be some sort of agency relationship between the litigant and the injured party. In Hollingsworth v. Perry,435 the Court considered the question of whether the official proponents of Proposition 8,436 a state measure that amended the California Constitution to define marriage as a union between a man and a woman, had standing to defend the constitutionality of the provision on appeal. After rejecting the argument that the proponents of Proposition 8 had a particularized injury in their own right,437 the Court considered the argument that the plaintiffs were formally authorized through some sort of official act to litigate on behalf of the State of California.

Although the proponents were authorized by California law to argue in defense of the proposition,438 the Court found that this authorization, by itself, was insufficient to create standing. The Court expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still acting as private individuals, not as state officials439 or as agents that were controlled by the state.440 Because the proponents did not act as agents or official representatives of the State of California in defending the law, the Court held that the proponents only possessed a generalized interest in arguing in defense of Proposition 8 and, therefore, lacked standing to appeal an adverse district court decision.

Nonetheless, the Court has been wary in constitutional cases of granting standing to persons who alleged threats or harm to interests that they shared with the larger community of people at large; it is unclear whether this rule against airing “generalized grievances” through the courts441 has a constitutional or a prudential basis.442

In a number of cases, particularly where a plaintiff seeks prospective relief, such as an injunction or declaratory relief, the Supreme Court has strictly construed the nature of the injury-in-fact necessary to obtain such judicial remedy. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking relief cannot articulate a concrete harm.443 For example, in Laird v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury stemmed from a “subjective chill,” as opposed to a “claim of specific present objective harm or a threat of specific future harm.”444 And in Spokeo, Inc. v. Robins, the Court explained that a concrete injury requires that an injury must “actually exist” or there must be a “risk of real harm,” such that a plaintiff who alleges nothing more than a bare procedural violation of a federal statute cannot satisfy the injury-in-fact requirement.445 Second, the Court has required plaintiffs seeking equitable relief to demonstrate that the risk of a future injury is of a sufficient likelihood; past injury is insufficient to create standing to seek prospective relief.446 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways,447 generally refusing to find standing where the risk of future injury is speculative.448

More recently, in Clapper v. Amnesty International USA, the Court held that, in order to demonstrate Article III standing, a plaintiff seeking injunctive relief must prove that the future injury, which is the basis for the relief sought, must be “certainly impending”; a showing of a “reasonable likelihood” of future injury is insufficient.449 Moreover, the Court in Amnesty International held that a plaintiff cannot satisfy the imminence requirement by merely “manufacturing” costs incurred in response to speculative, non-imminent injuries.450

A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus451 reaffirmed that preenforcement challenges to a statute can occur “under circumstances that render the threatened enforcement sufficiently imminent.”452 In Susan B. Anthony List, an organization planning to disseminate a political advertisement, which was previously the source of an administrative complaint under an Ohio law prohibiting making false statements about a candidate or a candidate’s record during a political campaign, challenged the prospective enforcement of that law. The Court, in finding that the plaintiff ’s future injury was certainly impending, relied on the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that “any person” could file a complaint under the law, and any threat of enforcement of the law could burden political speech.453

Of increasing importance are causation and redressability, the second and third elements of standing, recently developed and held to be of constitutional requisite. There must be a causal connection between the injury and the conduct complained of; that is, the Court insists that the plaintiff show that “but for” the action, she would not have been injured. And the Court has insisted that there must be a “substantial likelihood” that the relief sought from the court if granted would remedy the harm.454 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, because they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them.455 Or, low-income persons seeking the invalidation of a town’s restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained-of injury—inability to obtain adequate housing within their means—was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing.456 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school.457

But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that “but for” the passage of the law there was a “substantial likelihood,” based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries.458 And in a case where a creditor challenged a bankruptcy court’s structured dismissal of a Chapter 11 case that denied the creditor the opportunity to obtain a settlement or assert a claim with “litigation value,” the Court held that a decision in the creditor’s favor was likely to redress the loss.459 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have injured the claimants as a consequence.460

In a case permitting a plaintiff contractors’ association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too “speculative” or too “contingent.”461 The association had sued, alleging that many of its members “regularly bid on and perform construction work” for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause established a relevant proposition. “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”462 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis.463

Redressability can be present in an environmental “citizen suit” even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, “carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones.”464

Prudential Standing Rules.

Even when Article III constitu- tional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims.465 The rule is “not meant to be especially demanding,”466 and it is clear that the Court feels free to disregard any of these prudential rules when it sees fit.467 Congress is also free to legislate away prudential restraints and confer standing to the extent permitted by Article III.468 The Court has identified three rules as prudential ones,469 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff ’s interest, to which she asserts an injury, must come within the “zone of interest” arguably protected by the constitutional provision or statute in question470 and that plaintiffs may not air “generalized grievances” shared by all or a large class of citizens.471 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court.

Standing to Assert the Rights of Others.

Usually, one may assert only one’s interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else.472 In Tileston v. Ullman,473 an early round in the attack on a state anti-contraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held that he had no standing; no right of his was infringed, and he could not represent the interests of his patients.

There are several exceptions to the general rule, however, that make generalization misleading. Many cases allow standing to third parties who demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson,474 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed.475 Similarly, the Court has permitted defendants who have been convicted under state law—giving them the requisite injury—to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question.476 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury requirement—to represent the rights of third parties with whom the challenged law has interfered with a relationship.477

It is also possible, of course, that one’s own rights can be affected by action directed at someone from another group.478 A substantial dispute was occasioned in Singleton v. Wulff,479 over the standing of doctors who were denied Medicaid funds for the performance of abortions not “medically indicated” to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible.480 Following Wulff, the Court emphasized the close attorney-client relationship in holding that a lawyer had standing to assert his client’s Sixth Amendment right to counsel in challenging application of a drug-forfeiture law to deprive the client of the means of paying counsel.481 A “next friend” that is asserting the rights of another must establish that he has a “close relationship” with the real party in interest who is unable to litigate his own cause because of a “hindrance,”482 such as mental incapacity, lack of access to courts, or other disability.483

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him.484 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality.485

Legal challenges based upon the allocation of governmental authority under the Constitution, e.g., separation of powers and federalism, are generally based on a showing of injury to the disadvantaged governmental institution. The prohibition on litigating the injuries of others, however, does not appear to bar individuals from bringing these suits. For instance, injured private parties routinely bring separation-of-powers challenges,486 even though one could argue that the injury in question is actually upon the authority of the affected branch of government. Then, in Bond v. United States,487 the Court considered whether a criminal defendant could raise federalism arguments based on state prerogatives under the Tenth Amendment.488 There, the Court held that individuals could raise Tenth Amendment challenges, because states are not the “sole intended beneficiaries of federalism,” and an individual has a “direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . .”489

Organizational Standing.

Organizations do not have stand- ing as such to represent their particular concept of the public interest,490 but organizations have been permitted to assert the rights of their members.491 In Hunt v. Washington State Apple Advertising Comm’n,492 the Court promulgated elaborate standards, holding that an organization or association “has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Similar considerations arise in the context of class actions, in which the Court holds that a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient.493

Standing of States to Represent Their Citizens.

The right of a state to sue as parens patriae, in behalf of its citizens, has long been recognized.494 No state, however, may be parens patriae of its citizens “as against the Federal Government.”495 But a state may sue to protect the its citizens from environmental harm,496 and to enjoin other states and private parties from engaging in actions harmful to the economic or other well-being of it citizens.497 The state must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves;498 it must articulate an interest apart from those of private parties that partakes of a “quasi-sovereign interest” in the health and well-being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court’s wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts.499

Standing of Members of Congress.

The lower federal courts, principally the D.C. Circuit, developed a body of law governing the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch.500 When the Supreme Court finally addressed the issue on the merits in 1997, however, it severely curtailed Member standing.501 All agree that a legislator “receives no special consideration in the standing inquiry,”502 and that he, along with every other person attempting to invoke the aid of a federal court, must show “injury in fact” as a predicate to standing.503 What such injury in fact may consist of, however, has been the subject of debate.

A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that if the court found the President’s actions to be beyond his constitutional authority, the holding would have a distinct and significant bearing upon the Members’ duties to vote appropriations and other supportive legislation and to consider impeachment.504 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson,505 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some “legislative disenfranchisement” occurred.506 In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator’s effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist.507 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint.508

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.509 Several Members of Congress, who had voted against passage of the Line Item Veto Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the statute adversely affected their constitutionally prescribed lawmaking power.510 Emphasizing its use of standing doctrine to maintain separation-of-powers principles, the Court adhered to its holdings that, in order to possess the requisite standing, a person must establish that he has a “personal stake” in the dispute and that the alleged injury suffered is particularized as to him.511 Neither requirement, the Court held, was met by these legislators. First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which they were personally entitled. “[A]ppellees’ claim of standing is based on loss of political power, not loss of any private right, which would make the injury more concrete. . . . If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds . . . as trustee for his constituents, not as a prerogative of personal power.”512

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at least a truncated version of) Coleman v. Miller,513 in which the Court had found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as a result of a tie-breaker by the lieutenant governor. Although there are several possible explanations for the result in that case, the Court in Raines chose to fasten on a particularly narrow point. “[O]ur holding in Coleman stands (at most . . .) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”514 Because these Members could still pass or reject appropriations bills, vote to repeal the Act, or exempt any appropriations bill from presidential cancellation, the Act did not nullify their votes and thus give them standing.515

In a subsequent case, the Court reaffirmed the continued viability of Coleman516 in concluding that legislators, when authorized by the legislature, could have standing to assert an “institutional injury” to that legislative body.517 Specifically, the Court held in Arizona State Legislature v. Arizona Independent Redistricting Commission that the Arizona legislature had standing to challenge the validity of the Arizona Independent Redistricting Commission and the commission’s 2012 map of congressional districts because the legislature had been “stripped” of what the plaintiff considered its “exclusive constitutionally guarded role” in redistricting.518 Comparing the Arizona legislature’s role to the “institutional injury” suffered by the plaintiffs in Coleman, the Court viewed the Arizona legislators’ injury as akin to that of the Coleman legislators. Specifically, the Court likened the instant case to Coleman because the Arizona Constitution and the ballot initiative that provided for redistricting by an independent commission “completely nullif[y]” any vote “now or ‘in the future’ ” by the legislature “purporting to adopt a redistricting plan.”519 However, in Arizona State Legislature, the Court left open the question of whether Congress, in a lawsuit against the President over an institutional injury to the legislative branch, would likewise have standing, as such a lawsuit would “raise separation-of-powers concerns absent” in the case before the Court.520

Standing to Challenge Lawfulness of Governmental Action.

Standing to challenge governmental action on statutory or other non-constitutional grounds has a constitutional content to the degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue “in an adversary context and in a form historically viewed as capable of judicial resolution.”521 Liberalization of standing in the administrative law field has been notable.

The “old law” required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the right invaded must be a legal right,”522 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient. A “legal right” could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it;523 or it could be a right created by the Constitution or a statute.524 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”525 Early decisions under this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.526

In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing.527 Of even greater importance was the expansion of the nature of the cognizable injury beyond economic injury to encompass “aesthetic, conservational, and recreational” interests as well.528 “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”529 Thus, plaintiffs who pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as “persons aggrieved” to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the “attenuated line of causation” from rate setting to injury, but that was a matter for proof at trial, not for resolution on the pleadings.530

Much debate has occurred in recent years with respect to the validity of “citizen suit” provisions in the environmental laws, especially in light of the Court’s retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits,531 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

The Requirement of a Real Interest

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.”532 A party cannot maintain a suit “for a mere declaration in the air.”533 In Texas v. ICC,534 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.”535 And in Ashwander v. TVA,536 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.”537

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,538 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.

539

Advisory Opinions.

In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution.540 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: “These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments.”541 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a “firm and unvarying practice. . . .”542 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it;543 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation;544 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.545 Other Justices have individually served as advisers and confidants of Presidents in one degree or another.546

Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As Justice Jackson wrote when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: “To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.”547 The Court’s early refusal to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,548 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,549 or where the issues involved were abstract or contingent.550

Declaratory Judgments.

Rigid emphasis upon such ele- ments of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.551 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,552 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.553 Quickly tested, the Act was unanimously sustained.554 “The principle involved in this form of procedure,” the House report said, “is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.”555 The Senate report stated: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.”556

The 1934 Act provided that “[i]n cases of actual controversy” federal courts could “declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .”557 Upholding the Act, the Court wrote: “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.”558 Finding that the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.559

The Court has insisted that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.”560 As Justice Douglas wrote: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”561 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.562 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,563 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.564 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.565 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.566

As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.567 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,568 in which the relevance to declaratory judgments of the Dombrowski v. Pfister569 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”570 Escape from that duty might be found only in “narrow circumstances,” such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially developed doctrine that a litigant must show “special circumstances” to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.”571 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed572 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,573 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.574

Ripeness.

Just as standing historically has concerned who may bring an action in federal court, the ripeness doctrine concerns when it may be brought. Formerly, it was a wholly constitutional principle requiring a determination that the events bearing on the substantive issue have happened or are sufficiently certain to occur so as to make adjudication necessary and so as to assure that the issues are sufficiently defined to permit intelligent resolution. The focus was on the harm to the rights claimed rather than on the harm to the plaintiff that gave him standing to bring the action,575 although, to be sure, in most cases the harm is the same. But in liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts576 and conflated standing and ripeness considerations.577

The early cases generally required potential plaintiffs to expose themselves to possibly irreparable injury in order to invoke federal judicial review. Thus, in United Public Workers v. Mitchell,578 government employees alleged that they wished to engage in various political activities and that they were deterred from their desires by the Hatch Act prohibitions on political activities. As to all but one plaintiff, who had himself actually engaged in forbidden activity, the Court held itself unable to adjudicate because the plaintiffs were not threatened with “actual interference” with their interests. The Justices viewed the threat to plaintiffs’ rights as hypothetical and refused to speculate about the kinds of political activity they might engage in or the Government’s response to it. “No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations.”579 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United States were denied a request for an interpretation of the immigration laws that they would not be treated on their return as excludable aliens entering the United States for the first time, or alternatively, for a ruling that the laws so interpreted would be unconstitutional. The resident aliens had not left the country and attempted to return, although other alien workers had gone and been denied reentry, and the immigration authorities were on record as intending to enforce the laws as they construed them.580 Of course, the Court was not entirely consistent in applying the doctrine.581

It remains good general law that pre-enforcement challenges to criminal and regulatory legislation will often be unripe for judicial consideration because of uncertainty of enforcement,582 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it,583 or because the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests.584 But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute’s operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief.585 Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues.586

Of considerable uncertainty in the law of ripeness is Duke Power, in which the Court held ripe for decision on the merits a challenge to a federal law limiting liability for nuclear accidents at nuclear power plants, on the basis that, because the plaintiffs had sustained an injury-in-fact and had standing, the Article III requisite of ripeness was satisfied and no additional facts arising out of the occurrence of the claimed harm would enable the court better to decide the issues.587 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.

Mootness.

A case initially presenting all the attributes neces- sary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated.588 “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies] 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.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals. . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”589 Because, with the advent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,590 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older concepts.591 So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt on the practical enforceability of a final judicial order.592

Cases may become moot because of a change in the law,593 or in the status of the parties,594 or because of some act of one of the parties which dissolves the controversy.595 But the Court has developed several exceptions. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.”596 The “mere possibility” of such a consequence, even a “remote” one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case “an adversary cast and making it justiciable.”597 This exception has its counterpart in civil litigation in which a lower court judgment may still have certain present or future adverse effects on the challenging party.598

A second exception, the “voluntary cessation” doctrine, focuses on whether challenged conduct which has lapsed or the utilization of a statute which has been superseded is likely to recur.599 Thus, cessation of the challenged activity by the voluntary choice of the person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with assurance “that ‘there is no reasonable expectation that the wrong will be repeated.’ ”600 This amounts to a “formidable burden” of showing with absolute clarity that there is no reasonable prospect of renewed activity.601 Otherwise, “[t]he defendant is free to return to his old ways” and this fact would be enough to prevent mootness because of the “public interest in having the legality of the practices settled.”602 In this vein, the Court in Campbell-Ewald Co. v. Gomez, informed by principles of contract law, held that an unaccepted offer to settle a lawsuit amounts to a “legal nullity” that fails to bind either party and therefore does not moot the litigation.603

Still a third exception concerns the ability to challenge short-term conduct which may recur in the future, which has been denominated as disputes “capable of repetition, yet evading review.”604 Thus, in cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends.605 This exception is frequently invoked in cases involving situations of comparatively limited duration, such as elections,606 pregnancies,607 short sentences in criminal cases,608 the award of at least some short-term federal government contracts,609 and the issuance of injunctions that expire in a brief period.610

An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members and the other party exists.611 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence of a personal stake in the outcome for the named class representative.612 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, “a personal stake,” in his claimed right to represent the class in order to satisfy the “imperatives of a dispute capable of judicial resolution;” that is, his continuing interest adequately assures that “sharply presented issues” are placed before the court “in a concrete factual setting” with “self-interested parties vigorously advocating opposing positions.”613

The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought.614 Of much greater potential significance is the possible extension of the weakening of the “personal stake” requirement in other areas, such as the representation of third-party claims in non-class actions and the initiation of some litigation in the form of a “private attorneys general” pursuit of adjudication.615 In Genesis Healthcare Corporation v. Symczyk,616 the Court appeared to follow the “personal stake” rule applicable to class actions in the context of “collective actions” under the Fair Labor Standards Act, at least to the extent that actions that would moot the plaintiff ’s claims prior to a “conditional certification” by the court would likewise moot the collective action.

Retroactivity Versus Prospectivity.

One of the distinguish- ing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.617 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case.618 Yet, occasionally, the Court did not apply its holding to the parties before it,619 and in a series of cases beginning in the mid-1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively620 — constitutional-criminal law decisions. The results have been confusing and unpredictable.621

Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.”622 Statutory and judge-made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old.623 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions.

In the 1960s, when the Court began its expansion of the Bill of Rights and applied its rulings to the states, it became necessary to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,624 but the Court later promulgated standards for a balancing process that resulted in different degrees of retroactivity in different cases.625 Generally, in cases in which the Court declared a rule that was “a clear break with the past,” it denied retroactivity to all defendants, with the sometime exception of the appellant himself.626 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial627 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,628 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit.629

The Court later drew a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”630 Justice Harlan’s habeas approach was first adopted by a plurality in Teague v. Lane631 and then by the Court in Penry v. Lynaugh.632 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that “new rules” of constitutional interpretation—those “not ‘dictated by precedent existing at the time the defendant’s conviction became final’ ”633 —will not be applied.634 However, “[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”635 Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct “beyond the power of the criminal law-making authority to prescribe” or constitutes a “new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.”636 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.637

As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based,638 as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making “the resulting conviction or sentence . . . by definition . . . unlawful.”639 In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt.640 As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may “still be accurate” and the “defendant’s continued confinement may still be lawful” under the Constitution.641 In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits “a certain category of punishment for a class of defendants because of their status or offense.”642

Under the second exception it is “not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”643

What the rule is to be, and indeed if there is to be a rule, in civil cases has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.644 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when states are required to refund taxes collected under a statute that is subsequently ruled unconstitutional, the Court revealed itself to be deeply divided.645 The question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting company, and, once a new rule has been applied retroactively to the litigants in a civil case, considerations of equality and stare decisis compel application to all.646 Although partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.

Four Justices adhered to the principle that new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.647 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies.648 Apparently, the Court now has resolved this dispute, although the principal decision was by a five-to-four vote. In Harper v. Virginia Dep’t of Taxation,649 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”650 Four Justices continued to adhere to Chevron Oil, however,651 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.652 Future cases must, therefore, be awaited for resolution of this issue.

Political Questions

In some cases, a court will refuse to adjudicate a case despite the fact that it presents all the qualifications that we have considered to make it a justiciable controversy; it is in its jurisdiction, presented by parties with standing, and it is a case in which adverseness and ripeness exist. Such are cases that present a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic to the federal system and this Court’s appropriate place within that structure,”653 it has also been remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements.”654

It has been suggested that it may be more useful to itemize the categories of questions that have been labeled political rather than to attempt to isolate the factors that a court will consider to identify such cases.655 The Court has to some extent agreed, noting that the criteria applied by the Court in political questions cases can vary depending on the issue involved.656 Regardless of which approach is taken, however, the Court’s narrowing of the rationale for political questions in Baker v. Carr,657 discussed below, appears to have changed the nature of the inquiry radically.

Origins and Development.

In the first decade after ratifica- tion of the Constitution, the Court in Ware v. Hylton658 refused to pass on the question whether a treaty had been broken, and in Martin v. Mott,659 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But the roots of the doctrine are most clearly seen in Marbury v. Madison,660 where Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.”661

In Luther v. Borden,662 however, the Court made clear that the doctrine went beyond considerations of interference with executive functions. This case, arising from the Dorr Rebellion (a period of political unrest in Rhode Island), considered the claims of two competing factions vying to be declared the lawful government of Rhode Island.663 Chief Justice Taney, for the Court, began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts.664 Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every state a republican form of government,665 and this clause committed the determination of that issue to Congress.

“Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.”666 Here, the contest had not proceeded to a point where Congress had made a decision, “[y]et the right to decide is placed there, and not in the courts.”667

Moreover, in effectuating the provision in the same clause that the United States should protect states against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President “must determine what body of men constitute the legislature, and who is the governor . . . .” No court could review the President’s exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government.668 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court.669

The Doctrine Before Baker v. Carr.

Over the years, the po- litical question doctrine has been applied to preclude adjudication of a variety of other issues. In particular, prior to Baker v. Carr,670 cases challenging the distribution of political power through apportionment and districting,671 weighted voting,672 and restrictions on political action673 were held to present nonjusticiable political questions. Certain factors appear more or less consistently through most of the cases decided before Baker, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.

1. Republican Form of Government. By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause.674 The attacks were generally either on the government of the state itself675 or involved a challenge regarding the manner in which it had acted.676 There have, however, been cases involving this clause in which the Court has reached the merits.677

2. Recognition of Foreign States. Although there is language in the cases that would, if applied, serve to make all cases touching on foreign affairs and foreign policy political questions,678 whether the courts can adjudicate a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state679 or who is the de jure or de facto ruler of a foreign state680 is conclusive on the courts. In the absence of a definitive executive action, however, the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state.681 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized.682

3. Treaties. Similarly, the Court, when dealing with treaties and the treaty power, has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation683 and whether a treaty has lapsed because of the foreign state’s loss of independence684 or because of changes in the territorial sovereignty of the foreign state.685 On the other hand, the Court will not only interpret the domestic effects of treaties,686 but it will at times interpret the effects bearing on international matters.687 The Court has generally deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced.688

4. Enactment or Ratification of Laws. Ordinarily, the Court will not look behind the fact of certification as to whether the standards requisite for the enactment of legislation689 or ratification of a constitutional amendment690 have in fact been met, although it will interpret the Constitution to determine what the basic standards are.691 Further, the Court will decide certain questions if the political branches are in disagreement.692

From this limited review of the principal areas in which the political question doctrine seemed most established, it is possible to extract some factors that seemingly convinced the courts that the issues presented went beyond the judicial responsibility. These factors, stated baldly, would appear to be the lack of requisite information and the difficulty of obtaining it,693 the necessity for uniformity of decision and deference to the wider responsibilities of the political departments,694 and the lack of adequate standards to resolve a dispute.695 But present in all the political cases was (and is) the most important factor: a “prudential” attitude about the exercise of judicial review, which emphasizes that courts should be wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige of courts are in sharp conflict. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an expedient decision damaging to the principle.696

Baker v. Carr.

In Baker v. Carr,697 the Court undertook a major reformulation and rationalization of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits,698 and the Court’s subsequent rejection of the doctrine in other cases disclosed narrowing in other areas as well.699

According to Justice Brennan, who delivered the opinion of the Court, “it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question.’ ”700 Thus, the “nonjusticiability of a political question is primarily a function of the separation of powers.”701 “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”702 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: “It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”

The Justice went on to list a variety of factors to be considered, noting that “[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”703

Powell v. McCormack.

Because Baker had apparently restricted the political question doctrine to intrafederal issues, there was no discussion of the doctrine when the Court held that it had power to review and overturn a state legislature’s refusal to seat a member-elect because of his expressed views.704 But in Powell v. McCormack,705 the Court was confronted with a challenge to the exclusion of a member-elect by the United States House of Representatives. Its determination that the political question doctrine did not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan’s formulation in Baker of the factors that go to make up a political question,706 Chief Justice Warren determined that the only critical one in this case was whether there was a “textually demonstrable constitutional commitment” to the House to determine in its sole discretion the qualifications of members.707

In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell’s conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine.708 Although this approach accords with the “classicist” theory of judicial review,709 it circumscribes the political question doctrine severely, inasmuch as all constitutional questions turn on whether a governmental body has exceeded its specified powers, a determination the Court traditionally makes, whereas traditionally the doctrine precluded the Court from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one on the merits rather than a decision not to decide.

Chief Justice Warren disposed of the other factors present in political question cases in slightly more than a page. Because resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised “at variance with the construction given the document by another branch,” there was no lack of respect shown another branch. Nor, because the Court is the “ultimate interpreter of the Constitution,” will there be “multifarious pronouncements by various departments on one question,” nor, since the Court is merely interpreting the Constitution, is there an “initial policy determination” not suitable for courts. Finally, “judicially . . . manageable standards” are present in the text of the Constitution.710 The effect of Powell was to discard all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted in such a manner as seldom if ever to preclude a judicial decision on the merits.

The Doctrine Reappears.

Despite the apparent narrowing of the doctrine in Baker and Powell, the Court has not abandoned it. Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, § 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. “It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible—as the Judicial Branch is not—to the elective process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”711

The suggestion of the infirmity of the political question doctrine was rejected, since “because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.”712 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution.713 A challenge to the Senate’s interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue.714

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government’s argument that the political question doctrine precluded decision on the merits. The Court’s prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. “But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”715

After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the Origination Clause was justiciable.716 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a “lack of respect” for the House that passed the bill. “[D]isrespect,” in the sense of rejecting Congress’s reading of the Constitution, “cannot be sufficient to create a political question. If it were every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.”717 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the Origination Clause did not make this case nonjusticiable. “[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.”718

The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is designed to safeguard liberty.719 Finally, the Court was sanguine that it could develop “judicially manageable standards” for disposing of Origination Clause cases, and, thus, it did not view the issue as political in that context.720

In Zivotosky v. Clinton,721 the Court declined to find a political question where a citizen born in Jerusalem sought, pursuant to federal statute, to have “Israel” listed on his passport as his place of birth, the Executive Branch having declined to recognize Israeli sovereignly over that city. Justice Roberts, for the Court, failed to even acknowledge the numerous factors set forth in Justice Brennan’s Baker opinion save two—whether there is a textually demonstrable commitment of the issue to another department or a lack of judicially discoverable and manageable standards for resolving it.722 The Court noted that while the decision as whether or not to recognized Jerusalem as the capital of Israel might be exclusively the province of the Executive Branch, there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute,”723 such as whether Congress is encroaching on Presidential powers. Similarly, this latter question, while perhaps a difficult one, is amenable to the type of separation of powers “standards” used by the Court in other separation of powers cases.

In short, the political question doctrine may not be moribund, but it does seem applicable to a very narrow class of cases. Significantly, the Court made no mention of the doctrine when it resolved issues arising from Florida’s recount of votes in the closely contested 2000 presidential election,724 despite the fact that the Constitution vests in Congress the authority to count electoral votes, and further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.725

JUDICIAL REVIEW
The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application.726 Although it was first asserted in Marbury v. Madison727 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters,728 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.729

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation,730 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves.731 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,732 and in other debates questions of constitutionality and of judicial review were prominent.733 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

Marbury v. Madison.

Chief Justice Marshall’s argument for judicial review of congressional acts in Marbury v. Madison734 had been largely anticipated by Hamilton.735 Hamilton had written, for example: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”736

At the time of the change of administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson’s express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789,737 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction.738 Though deciding all the other issues in Marbury’s favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond the constitutional prescription and was therefore void.739

“The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States,” Marshall began his discussion of this final phase of the case, “but, happily, not of an intricacy proportioned to its interest.”740 First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.”741 “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”742

“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”743

“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”744 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to “pass[ ] at pleasure” the limits imposed on its powers by the Constitution.745

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising under the constitution.”746 It was “too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.”747 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath.748 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) gave the Constitution precedence over laws and treaties, providing that only laws “which shall be made in pursuance of the constitution” shall be the supreme law of the land.749

The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all states by 1850.750

Judicial Review and National Supremacy.

Even many per- sons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the Supremacy Clause, which makes the Constitution, laws enacted pursuant to the Constitution, and treaties the supreme law of the land,751 and which Congress effectuated by enacting § 25 of the Judiciary Act of 1789.752 Five years before Marbury v. Madison, the Court held invalid a state law as conflicting with the terms of a treaty,753 and seven years after Chief Justice Marshall’s opinion it voided a state law as conflicting with the Constitution.754

Virginia provided a states’ rights challenge to a broad reading of the Supremacy Clause and to the validity of § 25 in Martin v. Hunter’s Lessee755 and in Cohens v. Virginia.756 In both cases, it was argued that while the courts of Virginia were constitutionally obliged to prefer “the supreme law of the land,” as set out in the Supremacy Clause, over conflicting state constitutional provisions and laws, it was only by their own interpretation of the supreme law that they as courts of a sovereign state were bound. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. But Chief Justice Marshall rejected this narrow interpretation: “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.”757 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: “Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.”758

Limitations on the Exercise of Judicial Review
Constitutional Interpretation.

Under a written constitu- tion, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution—the law that is construed. The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it frequently is. Full consideration would carry us far afield, in view of the immense corpus of writing with respect to the proper mode of interpretation during this period.

Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue.759 These are (1) historical, (2) textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical argument is largely, though not exclusively, associated with the theory of original intent or original understanding, under which constitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language, or whether it may go beyond the four corners of the constitutional document to ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism.760 Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates.761 The remaining three modes are not necessarily tied to original intent, text, or structure, though they may have some relationship. Doctrinal arguments proceed from the application of precedents. Prudential arguments seek to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution.

Although the scholarly writing ranges widely, a much more narrow scope is seen in the actual political-judicial debate. Rare is the judge who will proclaim a devotion to ethical guidelines, such, for example, as natural-law precepts. The usual debate ranges from those adherents of strict construction and original intent to those with loose construction and adaptation of text to modern-day conditions.762 However, it is with regard to more general rules of prudence and self-restraint that one usually finds the enunciation and application of limitations on the exercise of constitutional judicial review.

Prudential Considerations.

Implicit in the argument of Marbury v. Madison763 is the thought that the Court is obligated to take and decide cases meeting jurisdictional standards. Chief Justice Marshall spelled this out in Cohens v. Virginia:764 “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” As the comment recognizes, because judicial review grows out of the fiction that courts only declare what the law is in specific cases765 and are without will or discretion,766 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability.767 But, although there are hints of Chief Justice Marshall’s activism in some modern cases,768 the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but in effect in practice as well with regard to what remains of appeals.769

At various times, the Court has followed more strictly than other times the prudential theorems for avoidance of decisionmaking when it deemed restraint to be more desirable than activism.770

The Doctrine of “Strict Necessity”.

The Court has repeat- edly declared that it will decide constitutional issues only if strict necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided.771

Speaking of the policy of avoiding the decision of constitutional issues except when necessary, Justice Rutledge wrote: “The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.”772

The Doctrine of Clear Mistake.

A precautionary rule early formulated and at the base of the traditional concept of judicial restraint was expressed by Professor James Bradley Thayer to the effect that a statute could be voided as unconstitutional only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”773 Whether phrased this way or phrased so that a statute is not to be voided unless it is unconstitutional beyond all reasonable doubt, the rule is of ancient origin774 and of modern adherence.775 In operation, however, the rule is subject to two influences, which seriously impair its efficacy as a limitation. First, the conclusion that there has been a clear mistake or that there is no reasonable doubt is that drawn by five Justices if a full Court sits. If five Justices of learning and detachment to the Constitution are convinced that a statute is invalid and if four others of equal learning and attachment are convinced it is valid, the convictions of the five prevail over the convictions or doubts of the four. Second, the Court has at times made exceptions to the rule in certain categories of cases. Statutory interferences with “liberty of contract” were once presumed to be unconstitutional until proved to be valid;776 more recently, presumptions of invalidity have expressly or impliedly been applied against statutes alleged to interfere with freedom of expression and of religious freedom, which have been said to occupy a “preferred position” in the constitutional scheme of things.777

Exclusion of Extra-Constitutional Tests.

Another maxim of constitutional interpretation is that courts are concerned only with the constitutionality of legislation and not with its motives, policy, or wisdom,778 or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitution.779 In various forms this maxim has been repeated to such an extent that it has become trite, and has increasingly come to be incorporated in cases in which a finding of unconstitutionality has been made as a reassurance of the Court’s limited review. And it should be noted that at times the Court has absorbed natural rights doctrines into the text of the Constitution, so that it was able to reject natural law per se and still partake of its fruits and the same thing is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937.780

Presumption of Constitutionality.

“It is but a decent re- spect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed,” wrote Justice Bushrod Washington, “to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.”781 A corollary of this maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which would justify the legislation that is challenged.782 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters.783

Disallowance by Statutory Interpretation.

If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed,784 even though in some instances this “constitutional doubt” maxim has caused the Court to read a statute in a manner that defeats or impairs the legislative purpose.785 Of course, the Court stresses that “[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”786 The maxim is not followed if the provision would survive constitutional attack or if the text is clear.787 Closely related to this principle is the maxim that, when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible.788 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable.789

Stare Decisis in Constitutional Law.

Adherence to prec- edent ordinarily limits and shapes the approach of courts to decision of a presented question. “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right . . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”790 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision “however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.”791 The limitation of stare decisis seems to have been progressively weakened since the Court proceeded to correct “a century of error” in Pollock v. Farmers’ Loan & Trust Co.792 Since then, more than 200 decisions have been overturned,793 and the merits of stare decisis seem more often celebrated in dissents than in majority opinions.794 Of lesser formal effect than outright overruling but with roughly the same result is a Court practice of “distinguishing” precedents, which often leads to an overturning of the principle enunciated in a case while leaving the actual case more or less alive.795

Conclusion.

The common denominator of all these maxims of prudence is the concept of judicial restraint. “We do not sit,” said Justice Frankfurter, “like a kadi under a tree dispensing justice according to considerations of individual expediency.”796 “[A] jurist is not to innovate at pleasure,” wrote Justice Cardozo. “He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.”797 All Justices will, of course, claim adherence to proper restraint,798 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case,799 the practice can be readily observed. The degree of restraint, however, the degree to which legislative enactments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion

JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS
Cases Arising Under the Constitution, Laws, and Treaties of the United States

Cases arising under the Constitution are cases that require an interpretation of the Constitution for their correct decision.800 They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks for judicial relief. The clause furnishes the principal textual basis for the implied power of judicial review of the constitutionality of legislation and other official acts.

Development of Federal Question Jurisdiction.

Almost from the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws;801 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.802 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.803 Although there were a few jurisdictional provisions enacted in the early years,804 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases,805 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.806 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.807

When a Case Arises Under.

The 1875 statute and its pres- ent form both speak of civil suits “arising under the Constitution, laws, or treaties of the United States,”808 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief Justice Marshall’s construction of the constitutional language to interpret the statutory language.809 The result was probably to accept more jurisdiction than Congress had intended to convey.810 Later cases take a somewhat more restrictive course.811

Determination whether there is federal question jurisdiction is made on the basis of the plaintiff ’s pleadings and not upon the response or the facts as they may develop.812 Plaintiffs seeking access to federal courts on this ground must set out a federal claim which is “well-pleaded” and the claim must be real and substantial and may not be without color of merit.813 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the action.814 But what exactly must be pleaded to establish a federal question is a matter of considerable uncertainty in many cases. It is no longer the rule that, when federal law is an ingredient of the claim, there is a federal question.815

Many suits will present federal questions because a federal law creates the action.816 Perhaps Justice Cardozo presented the most understandable line of definition, while cautioning that “[t]o define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards [approaching futility].”817 How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff ’s cause of action. . . . The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . . . A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. . . .818

It was long evident, though the courts were not very specific about it, that the federal question jurisdictional statute is and always was narrower than the constitutional “arising under” jurisdictional standard.819 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts sometimes construed the statute equivalently, with doubtful results.820

Removal From State Court to Federal Court.

A limited right to “remove” certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,821 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.822 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.823 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in “federal question” cases.824 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.825

The constitutionality of removal statutes was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,826 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.827 In Tennessee v. Davis,828 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the national government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the Necessary and Proper Clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer, here the judiciary.829 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws “is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. . . .”

“The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from state courts before trial, those doubts soon disappeared.”830 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.831 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.832

Corporations Chartered by Congress.

In Osborn v. Bank of the United States,833 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress to the federal courts of jurisdiction in all cases to which the bank was a party.834 Consequently, upon enactment of the 1875 law, the door was open to other federally chartered corporations to seek relief in federal courts. This opportunity was made actual when the Court in the Pacific R.R. Removal Cases835 held that tort actions against railroads with federal charters could be removed to federal courts solely on the basis of federal incorporation. In a series of acts, Congress deprived national banks of the right to sue in federal court solely on the basis of federal incorporation in 1882,836 deprived railroads holding federal charters of this right in 1915,837 and finally in 1925 removed from federal jurisdiction all suits brought by federally chartered corporations on the sole basis of such incorporation, except where the United States holds at least half of the stock.838

Federal Questions Resulting from Special Jurisdictional Grants.

In the Labor-Management Relations Act of 1947, Con- gress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.839 Although it is likely that Congress meant no more than that labor unions could be suable in law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to empower federal courts to apply substantive federal law, divined and fashioned from the policy of national labor laws, in such suits.840 State courts are not disabled from hearing actions brought under the section,841 but they must apply federal law.842 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts may be increased by unexpected interpretations of such grants.843

Civil Rights Act Jurisdiction.

Perhaps the most important of the special federal question jurisdictional statutes is that conferring jurisdiction on federal district courts to hear suits challenging the deprivation under color of state law or custom of any right, privilege, or immunity secured by the Constitution or by any act of Congress providing for equal rights.844 Because it contains no jurisdictional amount provision845 (while the general federal question statute at one time did)846 and because the Court has held inapplicable the judicially created requirement that a litigant exhaust his state remedies before bringing federal action,847 the statute has been heavily used, resulting in a formidable caseload, by plaintiffs attacking racial discrimination, malapportionment and suffrage restrictions, illegal and unconstitutional police practices, state restrictions on access to welfare and other public assistance, and a variety of other state and local governmental practices.848 Congress has encouraged use of the two statutes by providing for attorneys’ fees under § 1983,849 and by enacting related and specialized complementary statutes.850 The Court in recent years has generally interpreted § 1983 and its jurisdictional statute broadly, but it has also sought to restrict the kinds of claims that may be brought in federal courts.851 Note that § 1983 and § 1343(3) need not always go together, as § 1983 actions may be brought in state courts.852

Pendent Jurisdiction.

Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,853 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non-federal questions of fact and law may be involved therein.854 “Pendent jurisdiction,” as this form is commonly called, exists whenever the state and federal claims “derive from a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.”855 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional claims if they may avoid it and should rest their conclusions upon principles of state law where possible.856 But the federal court has discretion whether to hear the pendent state claims in the proper case. Thus, the trial court should look to “considerations of judicial economy, convenience and fairness to litigants” in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated, the court would be justified in dismissing the state claim.857

A variant of pendent jurisdiction, sometimes called “ancillary jurisdiction,” is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it might properly not have had jurisdiction of one of the issues if it had been independently presented.858 Thus, in an action under a federal statute, a compulsory counterclaim not involving a federal question is properly before the court and should be decided.859 The concept has been applied to a claim otherwise cognizable only in admiralty when joined with a related claim on the law side of the federal court, and in this way to give an injured seaman a right to jury trial on all of his claims when ordinarily the claim cognizable only in admiralty would be tried without a jury.860 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.861

Still another variant is the doctrine of “pendent parties,” under which a federal court could take jurisdiction of a state claim against one party if it were related closely enough to a federal claim against another party, even though there was no independent jurisdictional base for the state claim.862 Although the Supreme Court at first tentatively found some merit in the idea,863 in Finley v. United States,864 by a 5-to-4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs of pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia wrote for the Court, was within the constitutional grant of judicial power, but to be operable it must be affirmatively granted by congressional enactment.865 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but also codifying pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.”866

Thus, these interrelated doctrinal standards now seem well-grounded.

Protective Jurisdiction.

A conceptually difficult doctrine, which approaches the verge of a serious constitutional gap, is the concept of protective jurisdiction. Under this doctrine, it is argued that in instances in which Congress has legislative jurisdiction, it can confer federal jurisdiction, with the jurisdictional statute itself being the “law of the United States” within the meaning of Article III, even though Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial cases,867 the doctrine has neither been rejected nor accepted by the Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria,868 the Court reviewed a congressional grant of jurisdiction to federal courts to hear suits by an alien against a foreign state, jurisdiction not within the “arising under” provision of article III. Federal substantive law was not applicable, that resting either on state or international law. Refusing to consider protective jurisdiction, the Court found that the statute regulated foreign commerce by promulgating rules governing sovereign immunity from suit and was a law requiring interpretation as a federal-question matter. That the doctrine does raise constitutional doubts is perhaps grounds enough to avoid reaching it.869

Supreme Court Review of State Court Decisions.

In addi- tion to the constitutional issues presented by § 25 of the Judiciary Act of 1789 and subsequent enactments,870 questions have continued to arise concerning review of state court judgments which go directly to the nature and extent of the Supreme Court’s appellate jurisdiction. Because of the sensitivity of federal-state relations and the delicate nature of the matters presented in litigation touching upon them, jurisdiction to review decisions of a state court is dependent in its exercise not only upon ascertainment of the existence of a federal question but upon a showing of exhaustion of state remedies and of the finality of the state judgment. Because the application of these standards to concrete facts is neither mechanical nor nondiscretionary, the Justices have often been divided over whether these requisites to the exercise of jurisdiction have been met in specific cases submitted for review by the Court.

The Court is empowered to review the judgments of “the highest court of a State in which a decision could be had.”871 This will ordinarily be the state’s court of last resort, but it could well be an intermediate appellate court or even a trial court if its judgment is final under state law and cannot be reviewed by any state appellate court.872 The review is of a final judgment below. “It must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”T873 The object of this rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal assumption of a role in a controversy until the state court efforts are finally resolved.874 For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal of a state court judgment must have raised that issue with sufficient precision to have enabled the state court to have considered it and she must have raised the issue at the appropriate time below.875

When the judgment of a state court rests on an adequate, independent determination of state law, the Court will not review the resolution of the federal questions decided, even though the resolution may be in error.876 “The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and Federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion.”877 The Court is faced with two interrelated decisions: whether the state court judgment is based upon a nonfederal ground and whether the nonfederal ground is adequate to support the state court judgment. It is, of course, the responsibility of the Court to determine for itself the answer to both questions.878

The first question, whether there is a nonfederal ground, may be raised by several factual situations. A state court may have based its decision on two grounds, one federal, one nonfederal.879 It may have based its decision solely on a nonfederal ground but the federal ground may have been clearly raised.880 Both federal and nonfederal grounds may have been raised but the state court judgment is ambiguous or is without written opinion stating the ground relied on.881 Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent non-federal ground.882 In any event, it is essential for purposes of review by the Supreme Court that it appear from the record that a federal question was presented, that the disposition of that question was necessary to the determination of the case, that the federal question was actually decided or that the judgment could not have been rendered without deciding it.883

Several factors affect the answer to the second question, whether the nonfederal ground is adequate. In order to preclude Supreme Court review, the nonfederal ground must be broad enough, without reference to the federal question, to sustain the state court judgment;884 it must be independent of the federal question;885 and it must be tenable.886 Rejection of a litigant’s federal claim by the state court on state procedural grounds, such as failure to tender the issue at the appropriate time, will ordinarily preclude Supreme Court review as an adequate independent state ground,887 so long as the local procedure does not discriminate against the raising of federal claims and has not been used to stifle a federal claim or to evade vindication of federal rights.888

Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held the Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.889 Many years later, the Supreme Court held that consuls could be sued in federal court,890 and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where Supreme Court has been invested with original jurisdiction.891 Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in state courts against consular officials. The leading case is Ohio ex rel. Popovici v. Agler,892 in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony.

A number of incidental questions arise in connection with the phrase “affecting ambassadors and consuls.” Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States v. Ortega,893 the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit “affecting” the minister but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an ambassador or consul.

The Court has refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and has laid down the rule that it has the right to accept a certificate from the Department of State on such a question.894 A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.895 However, in matters of especial delicacy, such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature in which a state is a party, Congress until recently made the original jurisdiction of the Supreme Court exclusive of that of other courts.896 By its compliance with the congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose.

Cases of Admiralty and Maritime Jurisdiction

The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the states established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.897 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the states, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases.898

The Constitution uses the terms “admiralty and maritime jurisdiction” without defining them. Though closely related, the words are not synonyms. In England the word “maritime” referred to the cases arising upon the high seas, whereas “admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.899 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance “of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it . . . .”900 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe.901

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,902 it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that “whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.”903 The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York and Providence.

Power of Congress To Modify Maritime Law.

The Consti- tution does not identify the source of the substantive law to be applied in the federal courts in cases of admiralty and maritime jurisdiction. Nevertheless, the grant of power to the federal courts in Article III necessarily implies the existence of a substantive maritime law which, if they are required to do so, the federal courts can fashion for themselves.904 But what of the power of Congress in this area? In The Lottawanna,905 Justice Bradley undertook a definitive exposition of the subject. No doubt, the opinion of the Court notes, there exists “a great mass of maritime law which is the same in all commercial countries,” still “the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country.”906 “The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend ‘to all cases of admiralty and maritime jurisdiction.’ But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it . . . .”

“One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.”907

“It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.”908 That Congress’s power to enact substantive maritime law was conferred by the Commerce Clause was assumed in numerous opinions,909 but later opinions by Justice Bradley firmly established that the source of power was the admiralty grant itself, as supplemented by the second prong of the Necessary and Proper Clause.910 Thus, “[a]s the Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.”911 Rejecting an attack on a maritime statute as an infringement of intrastate commerce, Justice Bradley wrote: “It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.”912

The law administered by federal courts in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional amendment, the common law of torts and contracts as modified to the extent constitutionally possible by state legislation, and international prize law. This body of law is at all times subject to modification by the paramount authority of Congress acting in pursuance of its powers under the Admiralty and Maritime Clause and the Necessary and Proper Clause and, no doubt, the Commerce Clause, now that the Court’s interpretation of that clause has become so expansive. Of this power there has been uniform agreement among the Justices of the Court.913

Admiralty and Maritime Cases.

Admiralty and maritime ju- risdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act, while in the second category subject matter is the primary determinative factor.914 Specifically, contract cases include suits by seamen for wages,915 cases arising out of marine insurance policies,916 actions for towage917 or pilotage918 charges, actions on bottomry or respondentia bonds,919 actions for repairs on a vessel already used in navigation,920 contracts of affreightment,921 compensation for temporary wharfage,922 agreements of consortship between the masters of two vessels engaged in wrecking,923 and surveys of damaged vessels.924 That is, admiralty jurisdiction “extends to all contracts, claims and services essentially maritime.”925 But the courts have never enunciated an unambiguous test which would enable one to determine in advance whether or not a given case is maritime.926 “The boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract. . . .”927

Maritime torts include injuries to persons,928 damages to property arising out of collisions or other negligent acts,929 and violent dispossession of property.930 The Court has expressed a willingness to “recogniz[e] products liability, including strict liability, as part of the general maritime law.”931 Unlike contract cases, maritime tort jurisdiction historically depended exclusively upon the commission of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce.932 The Court has now held, however, that in addition to the requisite situs a significant relationship to traditional maritime activity must exist in order for the admiralty jurisdiction of the federal courts to be invoked.933 Both the Court and Congress have created exceptions to the situs test for maritime tort jurisdiction to extend landward the occasions for certain connected persons or events to come within admiralty, not without a little controversy.934

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.935 Also, in contrast to other phases of admiralty jurisdiction, prize law as applied by the British courts continued to provide the basis of American law so far as practicable,936 and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction includes the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,937 infraction of revenue laws,938 and the like.939

Admiralty Proceedings.

Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant.940 Suits in admiralty traditionally took the form of a proceeding in rem against the vessel, and, with exceptions to be noted, such proceedings in rem are confined exclusively to federal admiralty courts, because the grant of exclusive jurisdiction to the federal courts by the Judiciary Act of 1789 has been interpreted as referring to the traditional admiralty action, the in rem action, which was unknown to the common law.941 The savings clause in that Act under which a state court may entertain actions by suitors seeking a common-law remedy preserves to the state tribunals the right to hear actions at law where a common-law remedy or a new remedy analogous to a common-law remedy exists.942 Concurrent jurisdiction thus exists for the adjudication of in personam maritime causes of action against the owner of the vessel, and a plaintiff may ordinarily choose whether to bring his action in a state court or a federal court.

Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty has exclusive jurisdiction over in rem maritime actions and was thus considered a common-law remedy. Although the Supreme Court sometimes has used language that would confine all proceedings in rem to admiralty courts,943 such actions in state courts have been sustained in cases of forfeiture arising out of violations of state law.944

Perhaps the most significant admiralty court difference in procedure from civil courts is the absence of a jury trial in admiralty actions, with the admiralty judge trying issues of fact as well as of law.

945 Indeed, the absence of a jury in admiralty proceedings appears to have been one of the principal reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts, since they provided a forum where the English authorities could enforce the Navigation Laws without “the obstinate resistance of American juries.”946

Territorial Extent of Admiralty and Maritime Jurisdiction.

Although he was a vigorous exponent of the expansion of admiralty jurisdiction, Justice Story for the Court in The Steamboat Thomas Jefferson947 adopted a restrictive English rule confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended.948 The demands of commerce on western waters led Congress to enact a statute extending admiralty jurisdiction over the Great Lakes and connecting waters,949 and in The Genes-see Chief v. Fitzhugh950 Chief Justice Taney overruled The Thomas Jefferson and dropped the tidal ebb and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction over all waters, salt or fresh, tidal or not, which are navigable in fact.951 Some of the older cases contain language limiting jurisdiction to navigable waters which form some link in an interstate or international waterway or some link in commerce,952 but these date from the time when it was thought the commerce power furnished the support for congressional legislation in this field.

Admiralty and Federalism.

Extension of admiralty and mari- time jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the states through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore.953

Determination of the boundaries of admiralty jurisdiction is a judicial function, and “no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits.”954 But, as with other jurisdictions of the federal courts, admiralty jurisdiction can only be exercised under acts of Congress vesting it in federal courts.955

The boundaries of federal and state competence, both legislative and judicial, in this area remain imprecise, and federal judicial determinations have notably failed to supply definiteness. During the last century, the Supreme Court generally permitted two overlapping systems of law to coexist in an uneasy relationship. The federal courts in admiralty applied the general maritime law,956 supplemented in some instances by state law which created and defined certain causes of action.957 Because the Judiciary Act of 1789 saved to suitors common-law remedies, persons suing in state courts or in federal courts in diversity of citizenship actions could look to common-law and statutory doctrines for relief in maritime-related cases in which the actions were noticeable.958 In Southern Pacific Co. v. Jensen,959 a sharply divided Court held that New York could not constitutionally apply its workmen’s compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned “that the general maritime law, as accepted by the federal courts, constituted part of our national law, applicable to matters within the admiralty and maritime jurisdiction.”960 Recognizing that “it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation,” still it was certain that “no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations.”961 The “savings to suitors” clause was unavailing because the workmen’s compensation statute created a remedy “of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction.”962

Congress required three opportunities to legislate to meet the problem created by the decision, the lack of remedy for maritime workers to recover for injuries resulting from the negligence of their employers. First, Congress enacted a statute saving to claimants their rights and remedies under state workmen’s compensation laws.963 The Court invalidated it as an unconstitutional delegation of legislative power to the states. “The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations.”964 Second, Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries.965

The Court found this effort unconstitutional as well, because “the manifest purpose [of the statute] was to permit any State to alter the maritime law and thereby introduce conflicting requirements.”966 Finally, in 1927, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, which provided accident compensation for injuries, including those resulting in death, sustained on navigable waters by employees, other than members of the crew, whenever “recovery . . . may not validly be provided by State law.”967

With certain exceptions,968 the federal-state conflict since Jensen has taken place with regard to three areas: (1) the interpretation of federal and state bases of relief for injuries and death as affected by the Longshoremen’s and Harbor Workers’ Compensation Act; (2) the interpretation of federal and state bases of relief for personal injuries by maritime workers as affected by the Jones Act; and (3) the application of state law to permit recovery in maritime wrongful death cases in which until recently there was no federal maritime right to recover.969

(1) The principal difficulty here was that after Jensen the Supreme Court did not maintain the line between permissible and impermissible state-authorized recovery at the water’s edge, but created a “maritime but local” exception, by which some injuries incurred in or on navigable waters could be compensated under state workmen’s compensation laws or state negligence laws.970 “The application of the State Workmen’s Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law ‘would work no material prejudice to the essential features of the general maritime law.’ ”971 Because Congress provided in the Longshoremen’s and Harbor Workers’ Compensation Act for recovery under the Act “if recovery . . . may not validly be provided by State law,”972 it was held that the “maritime but local” exception had been statutorily perpetuated,973 thus creating the danger for injured workers or their survivors that they might choose to seek relief by the wrong avenue to their prejudice. This danger was subsequently removed by the Court when it recognized that there was a “twilight zone,” a “shadowy area,” in which recovery under either the federal law or a state law could be justified, and held that in such a “twilight zone” the injured party should be enabled to recover under either.974 Then, in Calbeck v. Travelers Ins. Co.,975 the Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held that Congress’s intent in enacting the statute was to extend coverage to all workers who sustain injuries while on navigable waters of the United States whether or not a particular injury was also within the constitutional reach of a state workmen’s compensation law or other law. By the 1972 amendments to the LHWCA, Congress extended the law shoreward by refining the tests of “employee” and “navigable waters,” so as to reach piers, wharfs, and the like in certain circumstances.976

(2) The passage of the Jones Act977 gave seamen a statutory right of recovery for negligently inflicted injuries on which they could sue in state or federal courts. Because injured parties could obtain a jury trial in Jones Act suits, there was little attempted recourse under the savings clause978 to state law claims and thus no need to explore the line between applicable and inapplicable state law. But in the 1940s personal injury actions based on unseaworthiness979 were given new life by Court decisions for seamen;980 and the right was soon extended to longshoremen who were injured while on board ship or while working on the dock if the injury could be attributed either to the ship’s gear or its cargo.981 While these actions could have been brought in state court, federal law supplanted state law even with regard to injuries sustained in state territorial waters.982 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons covered by the Act and substituted a recovery under the LHWCA itself for injuries caused by negligence.983

(3) In The Harrisburg,984 the Court held that maritime law did not afford an action for wrongful death, a position to which the Court adhered until 1970.985 The Jones Act,986 the Death on the High Seas Act,987 and the Longshoremen’s and Harbor Workers’ Compensation Act988 created causes of action for wrongful death, but for cases not falling within one of these laws the federal courts looked to state wrongful death and survival statutes.989 Thus, in The Tungus v. Skovgaard,990 the Court held that a state wrongful death statute encompassed claims both for negligence and unseaworthiness in the instance of a land-based worker killed when on board ship in navigable water; the Court divided five-to-four, however, in holding that the standards of the duties to furnish a seaworthy vessel and to use due care were created by the state law as well and not furnished by general maritime concepts.991 And, in Hess v. United States,992 a suit under the Federal Tort Claims Act for recovery for a death by drowning in a navigable Oregon river of an employee of a contractor engaged in repairing the federally owned Bonneville Dam, a divided Court held that liability was to be measured by the standard of care expressed in state law, notwithstanding that the standard was higher than that required by maritime law. One area existed, however, in which beneficiaries of a deceased seaman were denied recovery.

The Jones Act provided a remedy for wrongful death resulting from negligence, but not for one caused by unseaworthiness alone; in Gillespie v. United States Steel Corp.,993 the Court held that the survivors of a seaman drowned while working on a ship docked in an Ohio port could not recover under the state wrongful death statute even though the act recognized unseaworthiness as a basis for recovery, the Jones Act having superseded state laws.

Thus did matters stand until 1970, when the Court, in a unanimous opinion in Moragne v. States Marine Lines,994 overruled its earlier cases and held that a right of recovery for wrongful death is sanctioned by general maritime law and that no statute is needed to bring the right into being. The Court was careful to note that the cause of action created in Moragne would not, like the state wrongful death statutes in Gillespie, be held precluded by the Jones Act, so that the survivor of a seaman killed in navigable waters within a state would have a cause of action for negligence under the Jones Act or for unseaworthiness under the general maritime law.

995

Cases to Which the United States Is a Party
Right of the United States to Sue.

In the first edition of his Treatise, Justice Story noted that while “an express power is no where given in the constitution,” the right of the United States to sue in its own courts “is clearly implied in that part respecting the judicial power. . . . Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.”996 As early as 1818, the Supreme Court ruled that the United States could sue in its own name in all cases of contract without congressional authorization of such suits.997 Later, this rule was extended to other types of actions. In the absence of statutory provisions to the contrary, such suits are initiated by the Attorney General in the name of the United States.998

By the Judiciary Act of 1789, and subsequent amendments to it, Congress has vested in the federal district courts jurisdiction to hear all suits of a civil nature at law or in equity brought by the United States as party plaintiff.999 As in other judicial proceedings, the United States, like any party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.1000 Under the long-settled principle that the courts have the power to abate public nuisances at the suit of the government, the provision in § 208(2) of the Labor Management Relations Act of 1949, authorizing federal courts to enjoin strikes that imperil national health or safety was upheld on the grounds that the statute entrusts the courts with the determination of a “case or controversy” on which the judicial power can operate and does not impose any legislative, executive, or non-judicial function. Moreover, the fact that the rights sought to be protected were those of the public in unimpeded production in industries vital to public health, as distinguished from the private rights of labor and management, was held not to alter the adversary (“case or controversy”) nature of the litigation instituted by the United States as the guardian of the aforementioned rights.1001 Also, by reason of the highest public interest in the fulfillment of all constitutional guarantees, “including those that bear . . . directly on private rights, . . . it [is] perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.”1002

Suits Against States.

Controversies to which the United States is a party include suits brought against states as party defendants. The first such suit occurred in United States v. North Carolina,1003 which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the state, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court’s original jurisdiction did not extend to cases to which the United States is a party.1004 Stressing the inclusion within the judicial power of cases to which the United States and a state are parties, the elder Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States “was given by Texas when admitted to the Union upon an equal footing in all respects with the other States.”1005

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the state by the United States in breach of its trust obligations to the Indian.1006 In United States v. West Virginia,1007 the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states.1008 Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.1009 Like suits were decided against Louisiana and Texas in 1950.1010

Immunity of the United States From Suit.

Pursuant to the general rule that a sovereign cannot be sued in its own courts, the judicial power does not extend to suits against the United States unless Congress by statute consents to such suits. This rule first emanated in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”1011 In Cohens v. Virginia,1012 also in dictum, Chief Justice Marshall asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,1013 where Chief Justice Marshall stated that, as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.1014 Indeed, it was not until United States v. Lee1015 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Because suits against the United States can be maintained only by congressional consent, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.1016 As only Congress may waive the immunity of the United States from liability, officers of the United States are powerless either to waive such immunity or to confer jurisdiction on a federal court.1017 Even when authorized, suits may be brought only in designated courts,1018 and this rule applies equally to suits by states against the United States.1019 Congress may also grant or withhold immunity from suit on behalf of government corporations.1020

Suits Against United States Officials.

United States v. Lee, a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule “if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiff when the United States is not a defendant or a necessary party to the suit.”1021 Except, nevertheless, for an occasional case like Kansas v. United States,1022 which held that a state cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against the United States.1023 Even more significant is Stanley v. Schwalby,1024 holding that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Subsequent cases reaffirm the rule of United States v. Lee that, where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.1025 On the other hand, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.1026 But, as the Court has pointed out, it is not “an easy matter to reconcile all of the decisions of the court in this class of cases,”1027 and, as Justice Frankfurter quite justifiably stated in a dissent, “the subject is not free from casuistry.”1028 Justice Douglas’ characterization of Land v. Dollar, “this is the type of case where the question of jurisdiction is dependent on decision of the merits,”1029 is frequently applicable.

Larson v. Domestic & Foreign Corp.,1030 illuminates these obscurities somewhat. A private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company’s failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute and therefore a suit against the United States. It held that, although an officer in such a situation is not immune from suits for his own torts, his official action, though tortious, cannot be enjoined or diverted, because it is also the action of the sovereign.1031 The Court then proceeded to repeat the rule that “the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff ’s property) can be regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void.”1032 The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: “The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”1033

Suits against officers involving the doctrine of sovereign immunity have been classified into four general groups by Justice Frankfurter. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the government or calls “for an assertion of what is unquestionably official authority.”1034 Such suits, of course, cannot be maintained.1035 Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.1036 Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are maintainable.1037 Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.1038 This category of cases presents the greatest difficulties because these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.

Suits Against Government Corporations.

The multiplica- tion of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer v. RFC,1039 the Court held that the government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance is a matter of ascertaining the congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.1040 On the other hand, Indian nations are exempt from suit without further congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties.1041

Suits Between Two or More States

The extension of federal judicial power to controversies between states and the vesting of original jurisdiction in the Supreme Court of suits to which a state is a party had its origin in experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation, Congress was made “the last resort on appeal” to resolve “all disputes and differences . . . between two or more States concerning boundary, jurisdiction, or any other cause whatever,” and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten states.1042 It is hardly surprising, therefore, that during its first 60 years the only state disputes coming to the Supreme Court were boundary disputes1043 or that such disputes constitute the largest single number of suits between states. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization, other types of cases have occurred with increasing frequency.

Boundary Disputes: The Law Applied.

Of the earlier ex- amples of suits between states, that between New Jersey and New York1044 is significant for the application of the rule laid down earlier in Chisholm v. Georgia that the Supreme Court may proceed ex parte if a state refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between states, yet it does not exclude any,1045 that a boundary dispute is a justiciable and not a political question,1046 and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Baldwin stated: “The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.”1047

Modern Types of Suits Between States.

Beginning with Missouri v. Illinois & Chicago District,1048 which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have become an increasing source of suits between states. Such suits have been especially frequent in the western states,1049 where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas v. Colorado,1050 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York,1051 where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: “A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the River might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may be.”1052

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a state as the donee of the bonds of another to collect thereon,1053 by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former,1054 by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas,1055 of one state against another to enforce a contract between the two,1056 of a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,1057 and of a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.1058

In Texas v. New Jersey,1059 the Court adjudicated a multistate dispute about which state should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.

In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term “controversies between two or more States” enunciated in Rhode Island v. Massachusetts,1060 and fortified by Chief Justice Marshall’s dictum in Cohens v. Virginia,1061 concerning jurisdiction because of the parties to a case, that “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.”1062

Cases of Which the Court Has Declined Jurisdiction.

In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. In Alabama v. Arizona,1063 where Alabama sought to enjoin nineteen states from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between states will be exercised only when absolutely necessary, that the equity requirements in a suit between states are more exacting than in a suit between private persons, that the threatened injury to a plaintiff state must be of great magnitude and imminent, and that the burden on the plaintiff state to establish all the elements of a case is greater than the burden generally required by a petitioner seeking an injunction in cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant state must show that it “has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law or equity systems of jurisprudence.”1064 The fact that the trust property was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,1065 where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a state may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.1066 Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable.1067 Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri’s courts or in a federal district court in Missouri.

The Problem of Enforcement: Virginia v. West Virginia.

A very important issue in interstate litigation is the enforce- ment of the Court’s decree, once it has been entered. In some types of suits, this issue may not arise, and if it does, it may be easily met. Thus, a judgment putting a state in possession of disputed territory is ordinarily self-executing. But if the losing state should oppose execution, refractory state officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. Likewise an injunction may be enforced against state officials as individuals by civil or criminal proceedings. Those judgments, on the other hand, that require a state in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion of the state debt of original Virginia owed by West Virginia after its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt.

The suit was begun in 1906, and a judgment was rendered against West Virginia in 1915. Finally, in 1917, Virginia filed a suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia legislature to levy a tax for payment of the judgment.1068 Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,1069 the Court proceeded to hold that it applied with the same force to states as to other litigants1070 and to consider appropriate remedies for the enforcement of its authority. In this connection, Chief Justice White declared: “As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the Federal Government, judicial, legislative, or executive, which may be appropriately exercised.”1071 The Court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term. Before that could occur, West Virginia accepted the Court’s judgment and entered into an agreement with Virginia to pay it.1072

Enforcement Authority Includes Ordering Disgorgement and Reformation of Certain Agreements.

More recently, the Court, noting that proceedings under its original jurisdiction are “basically equitable,” has taken the view that its enforcement authority encompasses ordering disgorgement of part of one state’s gain from its breach of an interstate compact, as well as reforming certain agreements adopted by the states.1073 In so doing, the Court emphasized that its enforcement authority derives both from its “inherent authority” to apportion interstate streams between states equitably and from Congress’s approval of interstate compacts. As to its inherent authority, the Court noted that states bargain for water rights “in the shadow of ” the Court’s broad power to apportion them equitably and it is “difficult to conceive” that a state would agree to enter an agreement as to water rights if the Court lacked the power to enforce the agreement.1074 The Court similarly reasoned that its remedial authority “gains still greater force” because a compact between the states, “having received Congress’s blessing, counts as federal law.”1075 The Court stated, however, that an interstate compact’s “legal status” as federal law could also limit the Court’s enforcement power because the Court cannot order relief that is inconsistent with a compact’s express terms.1076

Controversies Between a State and Citizens of Another State

The decision in Chisholm v. Georgia1077 that cases “between a state and citizens of another state” included those where a state was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a state and citizens of another state have included only those cases where the state has been a party plaintiff or has consented to be sued.1078 As a party plaintiff, a state may bring actions against citizens of other states to protect its legal rights or in some instances as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power, which simultaneously comes within its original jurisdiction, by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.1079 This it does by holding rigorously to the rule that all the party defendants be citizens of other states1080 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts.1081

Jurisdiction Confined to Civil Cases.

In Cohens v. Virginia,1082 there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a state and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show that the corporation against which the suit was brought was chartered in another state.1083 Subsequently, the Court has ruled that it will not entertain an action by a state to which its citizens are either parties of record or would have to be joined because of the effect of a judgment upon them.1084 In his dictum in Cohens v. Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by states to enforce their penal laws.1085 Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.1086 Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a state is a party, and partly on Justice Iredell’s dissent in Chisholm v. Georgia,1087 where he confined the term “controversies” to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, “controversies between a State and citizens of another State” are confined to civil suits.1088

The State’s Real Interest.

Ordinarily, a state may not sue in its name unless it is the real party in interest with real interests. It can sue to protect its own property interests,1089 and if it sues for its own interest as owner of another state’s bonds, rather than as an assignee for collection, jurisdiction exists.1090 Where a state, in order to avoid the limitation of the Eleventh Amendment, provided by statute for suit in the name of the state to collect on the bonds of another state held by one of its citizens, it was refused the right to sue.1091 Nor can a state sue the citizens of other states on behalf of its own citizens to collect claims.1092

The State as Parens Patriae.

The distinction between suits brought by states to protect the welfare of their citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,1093 the state was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,1094 a closely divided Court accepted a suit by the state, suing as parens patriae and in its proprietary capacity—the latter being treated by the Court as something of a makeweight—seeking injunctive relief against 20 railroads on allegations that the rates were discriminatory against the state and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a state for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but rather “embrace the so called ‘quasi-sovereign’ interests which . . . are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.’ ”1095

Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest the development of a state and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.”1096

The continuing vitality of this case is in some doubt, as the Court has limited it in a similar case.1097 But the ability of states to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court’s original jurisdiction such suits are not in favor.1098

One clear limitation had seemed to be solidly established until later litigation cast doubt on its foundation. It is no part of a state’s “duty or power,” said the Court in Massachusetts v. Mellon,1099 “to enforce [its citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the state that represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.” But, in South Carolina v. Katzenbach,1100 while holding that the state lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 19651101 under the Fifth Amendment’s Due Process Clause and under the Bill of Attainder Clause of Article I,1102 the Court decided on the merits the state’s claim that Congress had exceeded its powers under the Fifteenth Amendment.1103 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion that is contrary to a number of supposedly venerated cases?1104 Either possibility would be significant in a number of respects.1105

Controversies Between Citizens of Different States

The records of the Federal Convention are silent on why the Framers included controversies between citizens of different states among the judicial power of the United States,1106 but Congress has given “diversity jurisdiction” in one form or another to the federal courts since the Judiciary Act of 1789.1107 The traditional explanation remains that offered by Chief Justice Marshall. “However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.”1108 Other explanations have been offered and controverted,1109 but diversity cases constitute a large bulk of cases on the dockets of the federal courts today, though serious proposals for restricting access to federal courts in such cases have been before Congress for some time.1110 The essential difficulty with this type of jurisdiction is that it requires federal judges to decide issues of local import on the basis of their reading of how state judges would decide them, an oftentimes laborious process, which detracts from the time and labor needed to resolve issues of federal import.

The Meaning of “State” and the District of Columbia Problem.

In Hepburn v. Ellzey,1111 Chief Justice Marshall for the Court confined the meaning of the word “state” as used in the Constitution to “the members of the American confederacy” and ruled that a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizenship. Marshall noted that it was “extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them. But this is a subject for legislative, not for judicial consideration.”1112 The same rule was subsequently applied to citizens of the territories of the United States.1113

Whether the Chief Justice had in mind a constitutional amendment or a statute when he spoke of legislative consideration remains unclear. Not until 1940, however, did Congress attempt to meet the problem by statutorily conferring on federal district courts jurisdiction of civil actions, not involving federal questions, “between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory.”1114 In National Mutual Ins. Co. v. Tidewater Transfer Co.,1115 this act was upheld in a five-to-four decision but for widely divergent reasons by a coalition of Justices. Two Justices thought that Chief Justice Marshall’s 1804 decision should be overruled, but the other seven Justices disagreed; however, three of the seven thought the statute could be sustained under Congress’s power to enact legislation for the inhabitants of the District of Columbia, but the remaining four plus the other two rejected this theory. The statute was upheld because a total of five Justices voted to sustain it, although of the two theories relied on, seven Justices rejected one and six the other. The result, attributable to “conflicting minorities in combination,”1116 means that Hepburn v. Ellzey is still good law insofar as it holds that the District of Columbia is not a state, but is overruled insofar as it holds that District citizens may not use federal diversity jurisdiction.1117

Citizenship of Natural Persons.

For purposes of diversity jurisdiction, state citizenship is determined by the concept of domicile1118 rather than of mere residence.1119 That is, while the Court’s definition has varied throughout the cases,1120 a person is a citizen of the state in which he has his true, fixed, and permanent home and principal establishment and to which he intends to return whenever he is absent from it.1121 Acts may disclose intention more clearly and decisively than declarations.1122 One may change his domicile in an instant by taking up residence in the new place and by intending to remain there indefinitely and one may obtain the benefit of diversity jurisdiction by so changing for that reason alone,1123 provided the change is more than a temporary expedient.1124

If the plaintiff and the defendant are citizens of different states, diversity jurisdiction exists regardless of the state in which suit is brought.1125 Chief Justice Marshall early established that in multi-party litigation, there must be complete diversity, that is, that no party on one side could be a citizen of any state of which any party on the other side was a citizen.1126 It has now apparently been decided that this requirement flows from the statute on diversity rather than from the constitutional grant and that therefore minimal diversity is sufficient.1127 The Court has also placed some issues beyond litigation in federal courts in diversity cases, apparently solely on policy grounds.1128

Citizenship of Corporations.

In Bank of the United States v. Deveaux,1129 Chief Justice Marshall declared: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name.” Nevertheless, the Court upheld diversity jurisdiction in the case because the members of the bank as a corporation were citizens of one state and Deveaux was a citizen of another. The holding that corporations were citizens of the states where their stockholders lived was reaffirmed a generation later,1130 but pressures were building for change. While corporations were assuming an ever more prominent economic role, the Strawbridge rule, which foreclosed diversity suits if any plaintiff had common citizenship with any defendant,1131 was working to close the doors of the federal courts to corporations with stockholders in many states.

Deveaux was overruled in 1844, when, after elaborate argument, a divided Court held that “a corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person.”1132 Ten years later, the Court abandoned this rationale, but it achieved the same result by “indulg[ing] in the fiction that, although a corporation was not itself a citizen for diversity purposes, its shareholders would be conclusively presumed citizens of the incorporating State.”1133 “State of incorporation” remained the guiding rule for determining the place of corporate citizenship until Congress amended the jurisdictional statute in 1958. Concern over growing dockets and companies incorporating in states of convenience then led to a dual citizenship rule whereby “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.”1134 The right of foreign corporations to resort to federal courts in diversity is not one that the states may condition as a qualification for doing business in the state.1135

Unincorporated associations, such as partnerships, joint stock companies, labor unions, governing boards of institutions, and the like, do not enjoy the same privilege as a corporation; the actual citizenship of each of its members must be considered in determining whether diversity exists.1136

Manufactured Diversity.

A litigant who, because of diver- sity of citizenship, can choose whether to sue in state or federal court, will properly consider where the advantages and disadvantages balance, and if diversity is lacking, a litigant who perceives the balance to favor the federal forum will sometimes attempt to create diversity. In the Judiciary Act of 1789, Congress exempted from diversity jurisdiction suits on choses of action in favor of an assignee unless the suit could have been brought in federal court if no assignment had been made.1137 One could create diversity by a bona fide change of domicile even with the sole motive of creating domicile.1138 Similarly, one could create diversity, or defeat it, by choosing a personal representative of the requisite citizenship.1139 Most attempts to manufacture or create diversity have involved corporations. A corporation cannot get into federal court by transferring its claim to a subsidiary incorporated in another state,1140 and for a time the Supreme Court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes of creating diversity.1141 But, in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,1142 it became highly important to the plaintiff company to bring its suit in federal court rather than in a state court. Thus, Black & White, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation; the only change made was the state of incorporation, the name, officers, shareholders, and location of the business remaining the same. A majority of the Court, over a strong dissent by Justice Holmes,1143 saw no collusion and upheld diversity, meaning that the company won whereas it would have lost had it sued in the state court. Black & White Taxicab probably more than anything led to a reexamination of the decision on the choice of law to be applied in diversity litigation.

The Law Applied in Diversity Cases.

By virtue of § 34 of the Judiciary Act of 1789,1144 state law expressed in constitutional and statutory form was regularly applied in federal courts in diversity actions to govern the disposition of such cases. But, in Swift v. Tyson,1145 Justice Story for the Court ruled that state court decisions were not laws within the meaning of § 34 and though entitled to respect were not binding on federal judges, except with regard to matters of a “local nature,” such as statutes and interpretations thereof pertaining to real estate and other immovables, in contrast to questions of general commercial law as to which the answers were dependent not on “the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence.”1146 The course of decision over the period of almost one hundred years was toward an expansion of the areas in which federal judges were free to construct a federal common law and a concomitant contraction of the definition of “local” laws.1147 Although dissatisfaction with Swift v. Tyson was almost always present, within and without the Court,1148 it was the Court’s decision in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.1149 that brought disagreement to the strongest point and perhaps precipitated the overruling of Swift v. Tyson in Erie Railroad Co. v. Tompkins.1150

“It is impossible to overstate the importance of the Erie decision. It announces no technical doctrine of procedure or jurisdiction, but goes to the heart of the relations between the Federal Government and the states, and returns to the states a power that had for nearly a century been exercised by the federal government.”1151 Erie was remarkable in a number of ways aside from the doctrine it announced. It reversed a 96-year-old precedent, which counsel had specifically not questioned; it reached a constitutional decision when a statutory interpretation was available though perhaps less desirable; and it marked the only time in United States constitutional history when the Court has held that it had undertaken an unconstitutional action.1152

Tompkins was injured by defendant’s train while he was walking along the tracks. He was a citizen of Pennsylvania, and the railroad was incorporated in New York. Had he sued in a Pennsylvania court, state decisional law was to the effect that, because he was a trespasser, the defendant owned him only a duty not to injure him through wanton or willful misconduct;1153 the general federal law treated him as a licensee who could recover for negligence. Tompkins sued and recovered in federal court in New York and the railroad presented the issue to the Supreme Court as one covered by “local” law within the meaning of Swift v. Tyson. Justice Brandeis for himself and four other Justices, however, chose to overrule the early case.

First, it was argued that Tyson had failed to bring about uniformity of decision and that its application discriminated against citizens of a state by noncitizens. Justice Brandeis cited recent researches1154 indicating that § 34 of the 1789 Act included court decisions in the phrase “laws of the several States.” “If only a question of statutory construction were involved we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear, and compels us to do so.”1155 For a number of reasons, it would not have been wise to have overruled Tyson on the basis of arguable new discoveries.1156

Second, the decision turned on the lack of power vested in Congress to prescribe rules for federal courts in state cases. “There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. No clause in the Constitution purports to confer such a power upon the federal courts.”1157 But having said this, Justice Brandeis made it clear that the unconstitutional assumption of power had been made not by Congress but by the Court itself. “[W]e do not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.”1158

Third, the rule of Erie replacing Tyson is that “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. Whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.”1159

Since 1938, the effect of Erie has first increased and then diminished, as the nature of the problems presented changed. Thus, the Court at first indicated that not only were the decisions of the highest court of a state binding on a federal diversity court, but also decisions of intermediate appellate courts1160 and courts of first instance,1161 even where the decisions bound no other state judge except as they were persuasive on their merits. It has now retreated from this position, concluding that federal judges are to give careful consideration to lower state court decisions and to old, perhaps outmoded decisions, but that they must find for themselves the state law if the state’s highest court has not spoken definitively within a period that would raise no questions about the continued viability of the decision.1162 In the event of a state supreme court reversal of an earlier decision, the federal courts are, of course, bound by the later decision, and a judgment of a federal district court, correct when rendered, must be reversed on appeal if the state’s highest court in the meantime has changed the applicable law.1163 In diversity cases that present conflicts of law problems, the Court has reiterated that the district court is to apply the law of the state in which it sits, so that in a case in State A in which the law of State B is applicable, perhaps because a contract was made there or a tort was committed there, the federal court is to apply State A’s conception of State B’s law.1164

The greatest difficulty in applying the Erie doctrine has been in cases in which issues of procedure were important.1165 The process was initiated in 1945 when the Court held that a state statute of limitations, which would have barred suit in state court, would bar it in federal court, although as a matter of federal law the case still could have been brought in federal court.1166 The Court regarded the substance-procedure distinction as immaterial. “[S]ince a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.”1167 The standard to be applied was compelled by the “intent” of Erie, which “was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.”1168 The Court’s application of this standard created substantial doubt that the Federal Rules of Civil Procedure had any validity in diversity cases.1169

But, in two later cases, the Court contracted the application of Erie in matters governed by the Federal Rules. Thus, in the earlier case, the Court said that “outcome” was no longer the sole determinant and countervailing considerations expressed in federal policy on the conduct of federal trials should be considered; a state rule making it a question for the judge rather than a jury of a particular defense in a tort action had to yield to a federal policy enunciated through the Seventh Amendment of favoring juries.1170 Some confusion has been injected into consideration of which law to apply— state or federal—in the absence of a federal statute or a Federal Rule of Civil Procedure.1171 In an action for damages, the federal courts were faced with the issue of the application either of a state statute, which gave the appellate division of the state courts the authority to determine if an award is excessive or inadequate if it deviates materially from what would be reasonable compensation, or of a federal judicially created practice of review of awards as so exorbitant that it shocked the conscience of the court. The Court determined that the state statute was both substantive and procedural, which would result in substantial variations between state and federal damage awards depending whether the state or the federal approach was applied; it then followed the mode of analysis exemplified by those cases emphasizing the importance of federal courts reaching the same outcome as would the state courts,1172 rather than what had been the prevailing standard, in which the Court balanced state and federal interests to determine which law to apply.1173 Emphasis upon either approach to considerations of applying state or federal law reflects a continuing difficulty of accommodating “the constitutional power of the states to regulate the relations among their citizens . . . [and] the constitutional power of the Federal Government to determine how its courts are to be operated.”1174 Additional decisions will be required to determine which approach, if either, prevails. The latter ruling simplified the matter greatly. Erie is not to be the proper test when the question is the application of one of the Rules of Civil Procedure; if the rule is valid when measured against the Enabling Act and the Constitution, it is to be applied regardless of state law to the contrary.1175

Although it seems clear that Erie applies in nondiversity cases in which the source of the right sued upon is state law,1176 it is equally clear that Erie is not applicable always in diversity cases whether the nature of the issue be substantive or procedural. Thus, it may be that there is an overriding federal interest which compels national uniformity of rules, such as a case in which the issue is the appropriate rule for determining the liability of a bank which had guaranteed a forged federal check,1177 in which the issue is the appropriate rule for determining whether a tortfeasor is liable to the United States for hospitalization of a soldier and loss of his services1178 and in which the issue is the appropriate rule for determining the validity of a defense raised by a federal officer sued for having libeled one in the course of his official duties.1179 In such cases, when the issue is found to be controlled by federal law, common or otherwise, the result is binding on state courts as well as on federal.1180 Despite, then, Justice Brandeis’ assurance that there is no “federal general common law,” there is a common law existing and developing in the federal courts, even in diversity cases, which will sometimes control decision.1181

Controversies Between Citizens of the Same State Claiming Land Under Grants of Different States

The genesis of this clause was in the report of the Committee of Detail which vested the power to resolve such land disputes in the Senate,1182 but this proposal was defeated in the Convention,1183 which then added this clause to the jurisdiction of the federal judiciary without reported debate.1184 The motivation for this clause was the existence of boundary disputes affecting ten sates at the time the Convention met. With the adoption of the Northwest Ordinance of 1787, the ultimate settlement of the boundary disputes, and the passing of land grants by the states, this clause, never productive of many cases, became obsolete.1185

Controversies Between a State, or the Citizens Thereof, and Foreign States, Citizens, or Subjects

The scope of this jurisdiction has been limited both by judicial decisions and the Eleventh Amendment. By judicial application of the law of nations, a foreign state is immune from suit in the federal courts without its consent,1186 an immunity which extends to suits brought by states of the American Union.1187 Conversely, the Eleventh Amendment has been construed to bar suits by foreign states against a state of the United States.1188 Consequently, the jurisdiction conferred by this clause comprehends only suits brought by a state against citizens or subjects of foreign states, by foreign states against American citizens, citizens of a state against the citizens or subjects of a foreign state, and by aliens against citizens of a state.1189

Suits by Foreign States.

The privilege of a recognized for- eign state to sue in the courts of another state upon the principle of comity is recognized by both international law and American constitutional law.1190 To deny a sovereign this privilege “would manifest a want of comity and friendly feeling.”1191 Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign state.1192 As the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit.1193 Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.1194 The rule that a foreign nation instituting a suit in a federal district court cannot invoke sovereign immunity as a defense to a counterclaim growing out of the same transaction has been extended to deny a claim of immunity as a defense to a counterclaim extrinsic to the subject matter of the suit but limited to the amount of the sovereign’s claim.1195 Moreover, certain of the benefits extending to a domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. A foreign state does not receive the benefit of the rule which exempts the United States and its member states from the operation of the statute of limitations, because those considerations of public policy back of the rule are regarded as absent in the case of the foreign sovereign.1196

Indian Tribes.

Within the terms of Article III, an Indian tribe is not a foreign state and hence cannot sue in the courts of the United States. This rule was applied in Cherokee Nation v. Georgia,1197 where Chief Justice Marshall conceded that the Cherokee Nation was a state, but not a foreign state, being a part of the United States and dependent upon it. Other passages of the opinion specify the elements essential of a foreign state for purposes of jurisdiction, such as sovereignty and independence.

Narrow Construction of the Jurisdiction.

As in cases of di- versity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809, the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as “late of the district of Maryland,” but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.1198 The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed § 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction when an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.1199 This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.1200 These rules, however, do not preclude a suit between citizens of the same state if the plaintiffs are merely nominal parties and are suing on behalf of an alien.1201

Footnotes

359
2 M. Farrand, supra at 430. [Back to text]
360
The proposal was contained in the Virginia Plan. 1 id. at 21. For the four rejections, see id. at 97–104, 108–10, 138–40, 2 id. at 73–80, 298. [Back to text]
361
Id. at 328–29, 342–44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up. [Back to text]
362
Id. at 340–41. The proposal was referred to the Committee on Detail and never heard of again. [Back to text]
363
1 C. Warren, supra at 108–111; 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 633–635 (H. Johnston ed., 1893); Hart & Wechsler (6th ed.), supra at 50–52. [Back to text]
364
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed “Finality of Judgment as an Attribute of Judicial Power,” supra. [Back to text]
365
See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288, 341, 345–348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568–575 (1947). [Back to text]
366
19 U.S. (6 Wheat.) 264 (1821). [Back to text]
367
19 U.S. at 378. [Back to text]
368
Muskrat v. United States, 219 U.S. 346, 356 (1911). [Back to text]
369
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). [Back to text]
370
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). [Back to text]
371
In re Pacific 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). [Back to text]
372
Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240–241 (1937). Cf. Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952). [Back to text]
373
Flast v. Cohen, 392 U.S. 83, 94–95 (1968). [Back to text]
374
“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). [Back to text]
375
Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971). [Back to text]
376
219 U.S. 346 (1911). [Back to text]
377
219 U.S. at 361–62. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar problems, but they resulted in decisions on the merits. E.g., Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 455–463 (1899); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); but see id. at 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law. [Back to text]
378
570 U.S. ___, No. 12–307, slip op. (2013). [Back to text]
379
Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7. [Back to text]
380
The BLAG is a standing body of the House, created by rule, consisting of members of the House Leadership and authorized to direct the House Office of the General Counsel to file suit on its behalf in state or federal court. [Back to text]
381
Windsor, slip op. at 6–7. [Back to text]
382
Id. at 10–13. [Back to text]
383
49 U.S. (8 How.) 251 (1850). [Back to text]
384
49 U.S. at 254–55. [Back to text]
385
Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892). [Back to text]
386
E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); cf. 1 C. Warren, supra at 147, 392–95; 2 id. at 279–82. In Powell v. Texas, 392 U.S. 514 (1968), the Court adjudicated on the merits a challenge to the constitutionality of criminal treatment of chronic alcoholics although the findings of the trial court, agreed to by the parties, appeared rather to be “the premises of a syllogism transparently designed to bring this case” within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed. [Back to text]
387
Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926), entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258–259 (1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S. 40, 58–59 (1968). [Back to text]
388
157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856). See also Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916). [Back to text]
389
Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S. 189 (1883). [Back to text]
390
Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921). [Back to text]
391
Ashwander v. TVA, 297 U.S. 288 (1936). See id. at 341 (Justice Brandeis dissenting in part). [Back to text]
392
298 U.S. 238 (1936). [Back to text]
393
Stern, The Commerce Clause and the National Economy, 59 HARV. L. REV. 645, 667–668 (1948) (detailing the framing of the suit). [Back to text]
394
Flast v. Cohen, 392 U.S. 83, 99 (1968). This characterization is not the view of the present Court; see Allen v. Wright, 468 U.S. 737, 750, 752, 755–56, 759–61 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 166, 174–75 (1974); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78–79 (1978). [Back to text]
395
Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227. [Back to text]
396
Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated “by reference to the Art. III notion that federal courts may exercise power only ‘in the last resort, and as a necessity,’ . . . and only when adjudication is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.’ ” Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60, 571–78 (1992). [Back to text]
397
E.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471–476 (1982); Allen v. Wright, 468 U.S. 737, 750–751 (1984). [Back to text]
398
C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 60 (4th ed. 1983). [Back to text]
399
“[T]he concept of ‘Art. III standing’ has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). “Generalizations about standing to sue are largely worthless as such.” Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). For extensive consideration of the doctrine, see Hart & Wechsler (6th ed.), supra at 100–183. [Back to text]
400
Thus, state courts could adjudicate a case brought by a person who had no standing in the federal sense. If the plaintiff lost, he would have no recourse in the U.S. Supreme Court, because of his lack of standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant might be able to appeal, because he might be able to assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). [Back to text]
401
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). [Back to text]
402
418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 176–77 (1974); Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); Whitmore v. Arkansas, 495 U.S. 149 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–77 (1992); Lance v. Coffman, 549 U.S. 437, 441 (2007) (per curiam). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v. Tatum, 408 U.S. 1 (1972). [Back to text]
403
Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522 (2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent.’ ” Id. at 517, 521. [Back to text]
404
Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits having been consolidated. [Back to text]
405
262 U.S. at 487, 488. In Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007), the Court added that, “if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.” [Back to text]
406
392 U.S. 83 (1968). [Back to text]
407
392 U.S. at 105. [Back to text]
408
United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227–28 (1974). Richardson in its generalized grievance constriction does not apply when Congress confers standing on litigants. FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on “any person aggrieved” by the denial of information required to be furnished them, it matters not that most people will be entitled and will thus suffer a “generalized grievance,” the statutory entitlement is sufficient. Id. at 21–25. [Back to text]
409
Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). In Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), the Court played down the “serious and adversarial treatment” prong of standing and strongly reasserted the separation-of-powers value of keeping courts within traditional bounds. The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers] concerns.” [Back to text]
410
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347–49 (2006) (standing denied to taxpayer claim that state tax credit given to vehicle manufacturer violated the Commerce Clause). [Back to text]
411
Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007). This decision does not affect Establishment Clause cases in which the plaintiff can allege a personal injury. A plaintiff who challenges a government display of a religious object, for example, need not sue as a taxpayer but may have standing “by alleging that he has undertaken a ‘special burden’ or has altered his behavior to avoid the object that gives him offense. . . . [I]t is enough for standing purposes that a plaintiff allege that he ‘must come into direct and unwelcome contact with the religious display to participate fully as [a] citizen[ ] . . . and to fulfill . . . legal obligations.’ ” Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir. 2005). In Van Orden v. Perry, 545 U.S. 677, 682 (2005), the Court, without mentioning standing, noted that the plaintiff “has encountered the Ten Commandments monument during his frequent visits to the [Texas State] Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.” [Back to text]
412
127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred in the judgment but would have overruled Flast. Justice Souter, joined by three other justices, dissented because he saw no logic in the distinction the plurality drew, as the plurality did not and could not have suggested that the taxpayers in Hein “have any less stake in the outcome than the taxpayers in Flast.” Id. at 2584. [Back to text]
413
330 U.S. 1 (1947). In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006), the Court held that a plaintiff ’s status as a municipal taxpayer does not give him standing to challenge a state tax credit. [Back to text]
414
See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers). [Back to text]
415
342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974). [Back to text]
416
342 U.S. at 434. [Back to text]
417
342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006). [Back to text]
418
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Importantly, standing is not “dispensed in gross,” and, accordingly, a plaintiff must demonstrate standing for each claim “he seeks to press and for each form of relief that is sought.” See Davis v. FEC, 554 U.S. 724, 734 (2008). Moreover, when there are multiple parties to a lawsuit brought in federal court, “[f]or all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor as of right.” See Town of Chester v. Laroe Estates, Inc., 581 U.S. ___, No. 16–605, slip. op. at 6 (2017). [Back to text]
419
Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958). [Back to text]
420
Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). [Back to text]
421
C. Wright, supra at 65–66. [Back to text]
422
E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430–431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr, 369 U.S. 186, 204–208 (1962) (voting rights). [Back to text]
423
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather than constitutional standard. The Court sometimes uses other language to characterize this test. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as “an invasion of a legally protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations. [Back to text]
424
Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999). [Back to text]
425
E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977); Singleton v. Wulff, 428 U.S. 106, 112–113 (1976); Warth v. Seldin, 422 U.S. 490, 498–499 (1975); O’Shea v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617–618 (1973). [Back to text]
426
Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmental group that was denied the opportunity to file comments with the United States Forest Service regarding a Forest Service action denied standing for lack of concrete injury). On the other hand, where a party has successfully established a legal right, a threat to the enforcement of that legal right gives rise to a separate legal injury. Salazar v. Buono, 559 U.S. ___, No. 08–472, slip op. at 8 (2010) (plurality opinion) (“A party that obtains a judgment in its favor acquires a ‘judicially cognizable’ interest in ensuring compliance with that judgment”). [Back to text]
427
See Spokeo, Inc. v. Robins, 578 U.S. ___, No. 13–1339, slip op. at 9 (2016). The phrase “chains of causation” originates from Justice Kennedy’s concurrence in Lujan, in which he states that in order to properly define an injury that can be vindicated in an Article III court, “Congress must . . . identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” 504 U.S. at 580 (Kennedy, J., concurring). [Back to text]
428
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). [Back to text]
429
524 U.S. 11 (1998). [Back to text]
430
That the injury was widely shared did not make the claimed injury a “generalized grievance,” the Court held, but rather in this case, as in others, the denial of the statutory right was found to be a concrete harm to each member of the class. [Back to text]
431
Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 412 U.S. 669, 687–88 (1973); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). SCRAP in particular is disfavored as too broad. Lujan v. Defenders of Wildlife, 504 U.S. at 566. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted. In Duke Power, 438 U.S. at 78–81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of liability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–65 (1991); Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000). [Back to text]
432
Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000). The Court confirmed its conclusion by reference to the long tradition of qui tam actions, since the Constitution’s restriction of judicial power to “cases” and “controversies” has been interpreted to mean “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Id. at 774. [Back to text]
433
Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008) (payphone operators had assigned claims against long-distance carriers to “aggregators” to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices Scalia, Thomas, and Alito, stated that the aggregators lacked standing because they “have nothing to gain from their lawsuit.” Id. at 2549. [Back to text]
434
128 S. Ct. at 2543. [Back to text]
435
570 U.S. ___, No. 12–144, slip op. (2013). [Back to text]
436
Under the relevant provisions of the California Elections Code , “ ‘[p]roponents of an initiative or referendum measure’ means . . . the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General . . . ; or . . . the person or persons who publish a notice of intention to circulate petitions, or, where publication is not required, who file petitions with the elections official or legislative body.”C AL. ELEC. CODE § 342 (West 2003). [Back to text]
437
Hollingsworth, slip op. at 7–9. [Back to text]
438
California’s governor and state and local officials declined to defend Proposition 8 in federal district court, so the proponents were allowed to intervene. After the federal district court held the proposition unconstitutional, the government officials elected not to appeal, so the proponents did. The federal court of appeals certified a question to the California Supreme Court on whether the official proponents of the proposition had the authority to assert the state’s interest in defending the constitutionality of Proposition 8, see Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011), which was answered in the affirmative, see Perry v. Brown, 265 P.3d 1002, 1007 (Cal. 2011). [Back to text]
439
See Hollingsworth, slip op. at 12 (citing Karcher v. May, 484 U.S. 72 (1987)). [Back to text]
440
The Court noted that an essential feature of agency is the principal’s right to control the agent’s actions. Here, the proponents “decided what arguments to make and how to make them.” Id. at 15. The Court also noted that the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal. Id. [Back to text]
441
See “Generalized or Widespread Injuries,” supra. [Back to text]
442
Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again prudential. [Back to text]
443
See generally Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]e-privation of a . . . right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing.”); see, e.g., Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 73 (1974) (plaintiffs alleged that Treasury regulations would require them to report currency transactions, but made no additional allegation that any of the information required by the Secretary will tend to incriminate them). [Back to text]
444
408 U.S. 1, 14–15 (1972). [Back to text]
445
See 578 U.S. ___, No. 13–1339, slip op. at 8–10 (2016). Nonetheless, the Spokeo Court cautioned that “intangible” injuries, such as violations of constitutional rights like freedom of speech or the free exercise of religion, can amount to “concrete” injuries. Id. at 8–9 (“ ‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’ ”). In determining whether an intangible harm amounts to a concrete injury, the Court noted that history and the judgment of Congress can inform a court’s conclusion about whether a particular plaintiff has standing. Id. at 9. [Back to text]
446
See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983) (holding that a victim of a police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him). [Back to text]
447
See Davis v. FEC, 554 U.S. 724, 734 (2008) (“[T]he injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.”). [Back to text]
448
See, e.g., Rizzo v. Goode, 423 U.S. 362, 372 (1976) (“[I]ndividual respondents’ claim to ‘real and immediate’ injury rests not upon what the named petitioners might do to them in the future . . . but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.”); O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (no “sufficient immediacy and reality” to allegations of future injury that rest on the likelihood that plaintiffs will again be subjected to racially discriminatory enforcement and administration of criminal justice). [Back to text]
449
568 U.S. ___, No. 11–205, slip op. at 10–11 (2013). In adopting a “certainly impending” standard, the five-Justice majority observed that earlier cases had not uniformly required literal certainty. Id. at 15 n.5. Amnesty International‘s limitation on standing may be particularly notable in certain contexts, such as national security, where evidence necessary to prove a “certainly impending” injury may be unavailable to a plaintiff. [Back to text]
450
Id. at 10–11. In Amnesty International, defense attorneys, human rights organizations, and others challenged prospective, covert surveillance of the communications of certain foreign nationals abroad as authorized by the FISA Amendments Act of 2008. The Court found the plaintiffs lacked standing because they failed to show, inter alia, what the government’s targeting practices would be, what legal authority the government would use to monitor any of the plaintiffs’ overseas clients or contacts, whether any approved surveillance would be successful, and whether the plaintiffs’ own communications from within the United States would incidentally be acquired. Id. at 11–15. Moreover, the Court rejected that the plaintiffs could demonstrate an injury-in-fact as a result of costs that they had incurred to guard against a reasonable fear of future harm (such as, travel expenses to conduct in person conversations abroad in lieu of conducting less costly electronic communications that might be more susceptible to surveillance) because those costs were the result of an injury that was not certainly impending. Id. at 16–19. [Back to text]
451
573 U.S. ___, No. 13–193, slip op. (2014). [Back to text]
452
Relying on Amnesty International, the Court in Susan B. Anthony List held that an allegation of future injury may suffice if the injury is “ ‘certainly impending’ or there is a ‘substantial risk’ that the harm may occur.” Id. at 8 (quoting Amnesty Int’l, slip op. at 10, 15, n.5). Interestingly, while previous Court decisions have viewed preenforcement challenges as a question of “ripeness,” see Article III: Section 2. Judicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants of Jurisdiction: Judicial Power and Jurisdiction-Cases and Controversies: The Requirements of a Real Interest: Ripeness, infra, Susan B. Anthony List held that the doctrine of ripeness ultimately “boil[s] down to the same question” as standing and, therefore, viewed the case through the lens of Article III standing. Susan B. Anthony List, slip op. at 7 n.5. [Back to text]
453
Susan B. Anthony List, slip op. at 14–17 (internal quotation marks omitted). [Back to text]
454
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 595 (1992); see also ASARCO Inc. v. Kadish, 490 U.S. 605, 612–617 (1989) (plurality opinion); Allen v. Wright, 468 U.S. 737, 751 (1984); see, e.g., Wittman v. Personhuballah, 578 U.S. ___, No. 14–1504, slip op. at 4–5 (2016) (dismissing a challenge to a redistricting plan by a congressman, who conceded that regardless of the result of the case he would not run in his old district, as any injury suffered could not be redressed by a favorable ruling). Although “causation” and “redressability” were initially articulated as two facets of a single requirement, the Court now views them as separate inquiries. See Sprint Commc’ns Co., L.P. v. APCC Servs., 554 U.S. 269, 286–87 (2008). To the extent there is a difference, it is that the former examines a causal connection between the allegedly unlawful conduct and the injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. [Back to text]
455
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked standing to contest prosecutorial policy of using child support laws to coerce support of legitimate children only, as it was “only speculative” that prosecution of father would result in support rather than jailing). However, in Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009), the Court noted in dicta that, if a plaintiff is denied a procedural right, the fact that the right had been accorded by Congress “can loosen the strictures of the redressability prong of our standing inquiry.” Thus, standing may exist even though a court’s enforcing a procedural right accorded by Congress, such as the right to comment on a proposed federal agency action, will not guarantee the plaintiff success in persuading the agency to adopt the plaintiff ’s point of view. [Back to text]
456
Warth v. Seldin, 422 U.S. 490 (1975). In Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), however, a person who alleged he was seeking housing in the community and that he would qualify if the organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low-income persons like himself was held to have shown a “substantial probability” that voiding of the ordinance would benefit him. [Back to text]
457
Allen v. Wright, 468 U.S. 737 (1984). But see Heckler v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in conferral of benefits were held to have standing to challenge the treatment, although a judicial order could only have terminated benefits to the favored class. In that event, members would have secured relief in the form of equal treatment, even if they did not receive benefits. See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr, 440 U.S. 268, 271–273 (1979). [Back to text]
458
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–78 1978). The likelihood of relief in some cases appears to be rather speculative at best. E/g., Bryant v. Yellen, 447 U.S. 352, 366–368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160–162 (1981). [Back to text]
459
See Czyzewski v. Jevic Holding Corp., 580 U.S. ___, No. 15–649, slip op. at 11 (2017) (holding that the “mere possibility” that a plaintiff ’s injury will not be remedied by a favorable decision is insufficient to conclude the plaintiff lacks standing because of want of redressability); see also Clinton v. City of New York, 524 U.S. 417, 430–31 (1998) (holding that the imposition of a “substantial contingent liability” qualifies as an injury for purposes of Article III standing). [Back to text]
460
Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737, 756–761 (1984). [Back to text]
461
Thus, it appears that had the Court applied its standard in the current case, the results would have been different in such cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737 (1984). [Back to text]
462
Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978). [Back to text]
463
508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance on Jacksonville, 509 U.S. at 81–82, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19. [Back to text]
464
Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000). [Back to text]
465
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979) (“a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim”). [Back to text]
466
Match-E-Be-Nash-She-Wish Band Of Pottawatomi Indians v. Patchak, 567 U.S. ___, No. 11–246, slip op. at 15 (2010). [Back to text]
467
Warth v. Seldin, 422 U.S. 490, 500–501 (1975); Craig v. Boren, 429 U.S. 190, 193–194 (1976). [Back to text]
468
“Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of “statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n.2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n.4, 11–12 (1976). For a good example of the congressionally created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–75 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester’s right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992). Justice Scalia, who wrote the opinion in Defenders of Wildlife, reiterated the separation-of-powers objection to congressional conferral of standing in FEC v. Akins, 524 U.S. 11, 29, 36 (1998) (alleged infringement of President’s “take care” obligation), but this time in dissent; the Court did not advert to this objection in finding that Congress had provided for standing based on denial of information to which the plaintiffs, as voters, were entitled. [Back to text]
469
Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–75 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984). [Back to text]
470
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n.19 (1976); Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987). See also Bennett v. Spear, 520 U.S. 154 (1997). The Court has indicated that [Back to text]
471
United States v. Richardson, 418 U.S. 166, 173, 174–76 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687–88 (1973), a congressional conferral case, the Court agreed that the interest asserted was one shared by all, but the Court has disparaged SCRAP, asserting that it “surely went to the very outer limit of the law,” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990). [Back to text]
472
United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986). [Back to text]
473
318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508–510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent). [Back to text]
474
346 U.S. 249 (1953). [Back to text]
475
See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a black had standing to contest constitutionality of ordinance barring sale of property to “colored” people, inasmuch as black defendant was relying on ordinance as his defense); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory private club could raise rights of black assignee in seeking injunction against expulsion from club). [Back to text]
476
E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; although use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons were not subject to prosecution and were thus impaired in their ability to gain a forum to assert their rights). [Back to text]
477
E.g., Doe v. Bolton, 410 U.S. 179, 188–189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution to challenge it); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was “obvious claimant” to raise issue); Carey v. Population Services Int’l, 431 U.S. 678, 682–84 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963). [Back to text]
478
Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant had a right to a jury comprised of a fair cross section of the community). The Court has expanded the rights of non-minority defendants to challenge the exclusion of minorities from petit and grand juries, both on the basis of the injury-in-fact to defendants and because the standards for being able to assert the rights of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998). [Back to text]
479
428 U.S. 106 (1976). [Back to text]
480
Compare 428 U.S. at 112–18 (Justices Blackmun, Brennan, White, and Marshall), with id. at 123–31 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower grounds limited to this case. [Back to text]
481
Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n.3 (1989). Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004), the Court’s finding that attorneys seeking to represent hypothetical indigent clients in challenging procedures for appointing appellate counsel had “no relationship at all” with such potential clients, let alone a “close” relationship. [Back to text]
482
See Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); see also Powers v. Ohio, 499 U.S. 400, 411 (1991). The Court has held that a parent-child relationship “easily satisfies” the “close relationship” requirement for “next friend” standing. See Sessions v. Morales-Santana, 582 U.S. ___, No. 15–1191, slip. op. at 7 (2017). [Back to text]
483
See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (rejecting “next friend” standing for a death row inmate who knowlingly, intelligently, and voluntarily chose not to appeal his sentence); see also Morales-Santana, 582 U.S. ___, slip. op. at 7 (2017) (holding that the death of the real party in interest meets the “hindrance” requirement for “next friend” standing). [Back to text]
484
United States v. Raines, 362 U.S. 17, 21–24 (1960). [Back to text]
485
Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id. at 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771–773 (1982). But the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988). [Back to text]
486
See, e.g., INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986);Clinton v. City of New York, 524 U.S. 417 (1998). [Back to text]
487
564 U.S. ___, No. 09–1227, slip op. (2011). [Back to text]
488
The defendant, in an attempt to harass a woman who had become impregnated by the defendant’s husband, had placed caustic substances on objects the woman was likely to touch. The defendant was convicted under 18 U.S.C. § 229, a broad prohibition against the use of harmful chemicals, enacted as part of the implementation of the 1997 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. The specifics of the defendant’s Tenth Amendment argument was not before the Court. [Back to text]
489
564 U.S. ___, No. 09–1227, slip op. at 10. [Back to text]
490
Sierra Club v. Morton, 401 U.S. 727 (1972). An organization may, of course, sue to redress injuries to itself. See Havens Realty Co. v. Coleman, 455 U.S. 363, 378–379 (1982). [Back to text]
491
E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971). [Back to text]
492
432 U.S. 333, 343 (1977). The organization here was not a voluntary membership entity but a state agency charged with furthering the interests of apple growers who were assessed annual sums to support the Commission. Id. at 341–45. See also Warth v. Seldin, 422 U.S. 490, 510–17 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39–40 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263–264 (1977); Harris v. McRae, 448 U.S. 297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986). [Back to text]
493
United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Geraghty was a mootness case. [Back to text]
494
Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens patriae suits but denying it in this particular suit). [Back to text]
495
Massachusetts v. Mellon, 262 U.S. 447, 485–486 (1923). But see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two constitutional claims against the United States but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n.1 (1970) (no question raised about standing or jurisdiction; claims adjudicated). [Back to text]
496
Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S. 365 (1923). [Back to text]
497
Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (antitrust); Maryland v. Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth’s opportunity to participate in federal employment service laws). [Back to text]
498
New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976). [Back to text]
499
Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court’s standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a state to bring suit on behalf of its citizens should be commensurate with the ability of private organizations to do so. Id. at 610. The Court admitted that different considerations might apply between original actions and district court suits. Id. at 603 n.12. [Back to text]
500
Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975). [Back to text]
501
Raines v. Byrd, 521 U.S. 811 (1997). In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court had recognized that legislators can in some instances suffer an injury in respect to the effectiveness of their votes that will confer standing. In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg, 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The “unexplicated affirmance” could have reflected disagreement with the lower court on standing or agreement with it on the merits. Note Justice Rehnquist’s appended statement. Id. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had found Member standing, and directed dismissal, but none of the Justices who addressed the question of standing. The opportunity to consider Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but the expiration of the law in issue mooted the case. [Back to text]
502
Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978). [Back to text]
503
See, e.g., Wittman v. Personhuballah, 578 U.S. ___, No. 14–1504, slip op. at 6 (2016) (concluding that two congressmen could not invoke federal jurisdiction to challenge a redistricting plan when they could not provide any evidence that the plan might injure their reelection chances). [Back to text]
504
Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973). [Back to text]
505
511 F.2d 430 (D.C. Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury was the nullification of the past vote on passage only or whether it was also the nullification of an opportunity to vote to override the veto has divided the Circuit, with the majority favoring the broader interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n.12 (D.C. Cir. 1979), and id. at 711–12 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979) [Back to text]
506
Kennedy v. Sampson, 511 F.2d 430, 435–436 (D.C. Cir. 1974). See Harrington v. Bush, 553 F.2d 190, 199 n.41 (D.C. Cir. 1977). Harrington found no standing in a Member’s suit challenging CIA failure to report certain actions to Congress, in order that Members could intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978). [Back to text]
507
Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C. Cir. 1979) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure of the Justices to remark on standing is somewhat puzzling, since it has been stated that courts “turn initially, although not invariably, to the question of standing to sue.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of precedential effect. United States v. Munsingwear, 340 U.S. 36, 39–40 (1950); O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975). [Back to text]
508
Riegle v. FOMC, 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082 (1981). [Back to text]
509
521 U.S. 811 (1997). [Back to text]
510
The Act itself provided that “[a]ny Member of Congress or any individual adversely affected” could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure of this litigation, the Court in the following Term, on suits brought by claimants adversely affected by the exercise of the veto, held the statute unconstitutional. Clinton v. City of New York, 524 U.S. 417 (1998). [Back to text]
511
521 U.S. at 819. [Back to text]
512
521 U.S. at 821. [Back to text]
513
307 U.S. 433 (1939). [Back to text]
514
521 U.S. at 823. [Back to text]
515
521 U.S. at 824–26. [Back to text]
516
See Coleman v. Miller, 307 U.S. 433 (1939). [Back to text]
517
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. ___, No. 13–1314, slip op. at 14 (2015). [Back to text]
518
Id. at 10. [Back to text]
519
Id. [Back to text]
520
Id. at 14 n.12. [Back to text]
521
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, at 100], is one within the power of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). [Back to text]
522
Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940). [Back to text]
523
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). [Back to text]
524
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir. 1943), cert. dismissed as moot, 320 U.S. 707 (1943). [Back to text]
525
5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC). [Back to text]
526
FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968). [Back to text]
527
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury-in-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990); Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977). Almost contemporaneously, the Court also liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court divided 5-to-4 in applying the test. See also Bennett v. Spear, 520 U.S. 154 (1997). [Back to text]
528
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970). [Back to text]
529
Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a “representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737–738, noting Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties). [Back to text]
530
United States v. SCRAP, 412 U.S. 669, 683–690 (1973). As was noted above, this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 566–67 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158–160 (1990). [Back to text]
531
See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that citizen suit provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524 U.S. 11 (1998) (expansion of standing based on denial of access to information). [Back to text]
532
Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945). [Back to text]
533
Giles v. Harris, 189 U.S. 475, 486 (1903). [Back to text]
534
258 U.S. 158 (1922). [Back to text]
535
258 U.S. at 162. [Back to text]
536
297 U.S. 288 (1936). [Back to text]
537
297 U.S. at 324. Chief Justice 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 (1867). [Back to text]
538
330 U.S. 75 (1947). [Back to text]
539
330 U.S. at 89–91. Justices Black and Douglas dissented, contending that the controversy was justiciable. Justice 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. National 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). [Back to text]
540
1 C. Warren, supra at 108–111. The full text of the exchange appears in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486–489 (H. Johnston ed., 1893). [Back to text]
541
Jay Papers at 488. [Back to text]
542
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948). [Back to text]
543
See supra. [Back to text]
544
1 C. Warren, supra at 595–597. [Back to text]
545
Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. See also Chief Justice Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF ROGER B. TANEY 432–435 (1876). [Back to text]
546
E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 HARV. L. REV. 366 (1969). The issue earned the attention of the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397–408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally authorized service of federal judges on the Sentencing Commission. [Back to text]
547
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–114 (1948). [Back to text]
548
Muskrat v. United States, 219 U.S. 346 (1911). [Back to text]
549
United States v. Ferreira, 54 U.S. (13 How.) 40 (1852). [Back to text]
550
United Public Workers v. Mitchell, 330 U.S. 75 (1947). [Back to text]
551
Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928). [Back to text]
552
Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 120–21). [Back to text]
553
48 Stat. 955, as amended, 28 U.S.C. §§ 22012202. [Back to text]
554
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) (cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007)). [Back to text]
555
H. REP. NO. 1264, 73d Congress, 2d Sess. (1934), 2. [Back to text]
556
S. REP. NO. 1005, 73d Congress, 2d Sess. (1934), 2. [Back to text]
557
48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201. [Back to text]
558
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937). [Back to text]
559
300 U.S. at 242–44. [Back to text]
560
Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). [Back to text]
561
Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). [Back to text]
562
Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995). [Back to text]
563
An exception “with respect to Federal taxes” was added in 1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981). [Back to text]
564
E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572–573 (1947). [Back to text]
565
United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952). [Back to text]
566
E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958). [Back to text]
567
E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969). [Back to text]
568
389 U.S. 241 (1967). [Back to text]
569
380 U.S. 479 (1965). [Back to text]
570
Zwickler v. Koota, 389 U.S. 241, 248 (1967). [Back to text]
571
Zwickler v. Koota, 389 U.S. 241, 254 (1967). [Back to text]
572
Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded. [Back to text]
573
Hicks v. Miranda, 422 U.S. 332, 349 (1975). [Back to text]
574
Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977). [Back to text]
575
United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripeness, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United States, 523 U.S. 296 (1998). [Back to text]
576
Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential one). [Back to text]
577
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82 (1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by granting requested relief satisfies Article III ripeness requirement; prudential element satisfied by determination that Court would not be better prepared to render a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991). [Back to text]
578
330 U.S. 75 (1947). [Back to text]
579
330 U.S. at 90. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), without discussing ripeness, the Court decided on the merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete infringements upon their desires and intentions than the UPW plaintiffs had. [Back to text]
580
International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also Electric Bond Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). [Back to text]
581
In Adler v. Board of Educ., 342 U.S. 485 (1952), without discussing ripeness, the Court decided on the merits a suit about a state law requiring dismissal of teachers advocating violent overthrow of the government, over a strong dissent arguing the case was indistinguishable from Mitchell. Id. at 504 (Justice Frankfurter dissenting). In Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961), a state employee was permitted to attack a non-Communist oath, although he alleged he believed he could take the oath in good faith and could prevail if prosecuted, because the oath was so vague as to subject plaintiff to the “risk of unfair prosecution and the potential deterrence of constitutionally protected conduct.” Id. at 283–84. See also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967). [Back to text]
582
E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law barring use of contraceptives because in 80 years of the statute’s existence the state had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97 (1987) (merits reached in absence of enforcement and fair indication state would not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although state asserted law would not be used, although local prosecutor had so threatened; no discussion of ripeness, but dissent relied on Poe, id. at 317–18). [Back to text]
583
E.g., Younger v. Harris, 401 U.S. 37, 41–42 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976). In the context of the ripeness to challenge of agency regulations, as to which there is a presumption of available judicial remedies, the Court has long insisted that federal courts should be reluctant to review such regulations unless the effects of administrative action challenged have been felt in a concrete way by the challenging parties, i.e., unless the controversy is “ripe.” See, of the older cases, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More recent cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990). [Back to text]
584
E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 294–297 (1981); Renne v. Geary, 501 U.S. 312, 320–323 (1991). [Back to text]
585
Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705, 707–708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297–305 (1979) (finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188–189 (1973), with Roe v. Wade, 410 U.S. 113, 127–128 (1973). See also Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979). [Back to text]
586
Buckley v. Valeo, 424 U.S. 1, 113–118 (1976); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (holding some but not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties had not put themselves in opposition). [Back to text]
587
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82 (1978). The injury giving standing to plaintiffs was the environmental harm arising from the plant’s routine operation; the injury to their legal rights was alleged to be the harm caused by the limitation of liability in the event of a nuclear accident. The standing injury had occurred, the ripeness injury was conjectural and speculative and might never occur. See id. at 102 (Justice Stevens concurring in the result). It is evident on the face of the opinion and expressly stated by the objecting Justices that the Court used its standing/ripeness analyses in order to reach the merits, so as to remove the constitutional cloud cast upon the federal law by the district court decision. Id. at 95, 103 (Justices Rehnquist and Stevens concurring in the result). [Back to text]
588
E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 398–399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990); Camreta V. Greene, 563 U.S. ___, No. 09–1954, slip op. (2011); United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 4 (2011). Munsingwear has long stood for the proposition that the appropriate practice of the Court in a civil case that had become moot while on the way to the Court or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), however, the Court held that when mootness occurs because the parties have reached a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would be served by vacatur. [Back to text]
589
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional limitation mandated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n.3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id. at 332 (Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424 U.S. 747, 756 n.8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). [Back to text]
590
But see Steffel v. Thompson, 415 U.S. 452, 470–72 (1974); id. at 477 (Justice White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant “[f]urther necessary or proper relief,” which could include enjoining state prosecutions. [Back to text]
591
Award of process and execution are no longer essential to the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). [Back to text]
592
Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013) (appeal of district court order returning custody of a child to her mother in Scotland not made moot by physical return of child to Scotland and subsequent ruling of Scottish court in favor of the mother continuing to have custody). [Back to text]
593
E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982) (case not mooted by repeal of ordinance, since City made clear its intention to reenact it if free from lower court judgment); see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___, No. 11–338, slip op. (2013) (action to enforce penalty under former regulation not mooted by change in regulation where violation occurred before regulation was changed). Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993), held that when a municipal ordinance is repealed but replaced by one sufficiently similar so that the challenged action in effect continues, the case is not moot. But see id. at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and case is mooted). [Back to text]
594
Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two-and-one-half years after argument and dismissed as moot since certainly none of the challengers was now in the age bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S. 624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), a state employee attacking an English-only work requirement had standing at the time she brought the suit, but she resigned following a decision in the trial court, thus mooting the case before it was taken to the appellate court, which should not have acted to hear and decide it. [Back to text]
595
E.g., Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers Local 8–6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625 (1979); Alvarez v. Smith, 558 U.S. ___, No. 08–351 (2009). [Back to text]
596
Sibron v. New York, 395 U.S. 40, 50–58 (1968). But compare Spencer v. Kemna, 523 U.S. 1 (1998). [Back to text]
597
Benton v. Maryland, 395 U.S. 784, 790–791 (1969). The cases have progressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v. New York, 390 U.S. 629, 633–634 n.2 (1968); Sibron v. New York, 392 U.S. 40, 49–58 (1968).But see Lane v. Williams, 455 U.S. 624 (1982);United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 6 (2011) (per curiam) (rejecting as too indirect a benefit that favorable resolution of a case might serve as beneficial precedent for a future case involving the plaintiff). The exception permits review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct review, the Court’s present practice is to dismiss the petition for certiorari. Dove v. United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S. 481 (1971). [Back to text]
598
Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did not moot employer challenge to state regulations entitling strikers to state welfare assistance since the consequences of the regulations would continue). [Back to text]
599
United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 202–04 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440 U.S. 625, 631–34 (1979), and id. at 641–46 (Justice Powell dissenting); Vitek v. Jones, 445 U.S. 480, 486–487 (1980), and id. at 500–01 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982). [Back to text]
600
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir. 1945)). [Back to text]
601
Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. at 4 (2013) (dismissal of a trademark infringement claim against rival and submittal of an unconditional and irrevocable covenant not to sue satisfied the burden under the voluntary cessation test) (citing Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2000)). See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15–577, slip op. at 5 n.1 (2017) (holding that a governor’s announcement that religious organizations could compete for state monetary grants did not moot a case challenging a previous policy of issuing grants only to non-religious entities as the state had failed to carry its “heavy burden” of “making absolutely clear” that it could not revert to its policy of excluding religious organizations from the grant program). [Back to text]
602
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961). [Back to text]
603
577 U.S. ___, No. 14–857, slip op. at 7–9 (2016) (“[W]ith no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation that they had at the outset.”). The Campbell-Ewald decision was limited to the question of whether an offer of complete relief moots a case. The Court left open the question of whether the payment of complete relief by a defendant to a plaintiff can render a case moot. Id. at 11. [Back to text]
604
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). [Back to text]
605
Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125–26 (1974), and id. at 130–32 (Justice Stewart dissenting), Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 189–91 (2000),. The degree of expectation or likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe, 484 U.S. 305, 318–23 (1988), with id. at 332 (Justice Scalia dissenting). [Back to text]
606
See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). [Back to text]
607
See Roe v. Wade, 410 U.S. 113, 124–125 (1973). [Back to text]
608
See, e.g., Sibron v. New York, 392 U.S. 40, 49–58 (1968). See also Gerstein v. Pugh, 420 U.S. 103 (1975). [Back to text]
609
See, e.g., Kingdomware Techs., Inc. v. United States, 579 U.S. ___, No. 14–916, slip op. at 7 (2016) (“We have previously held that a period of two years is too short to complete judicial review of the lawfulness of [a] procurement.”) (citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911)). [Back to text]
610
See, e.g., Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage). [Back to text]
611
Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S. 747, 752–757 (1976). A suit which proceeds as a class action but without formal certification may not receive the benefits of this rule. Board of School Commr’s v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n.7 (1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977). [Back to text]
612
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980). [Back to text]
613
445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dissented, id. at 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed to be a sufficient “personal stake”. Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No. 11–1059, slip op. (2013) (in the context of a “collective action” under the Fair Labor Standards Act where a plaintiff ’s individual claim was moot and no other individuals had joined the suit, holding that a plaintiff had no personal stake in the case that provided the court with subject matter jurisdiction). In a slightly different context, the Court, in Campbell-Ewald Co. v. Gomez, held that neither an unaccepted settlement offer or an offer of judgment provided prior to class certification would moot a potential lead plaintiff ’s case. 577 U.S. ___, No. 14–857, slip op. at 11 (2016). According to the majority opinion, this holding avoided placing defendants in the “driver’s seat” with respect to class litigation wherein a defendant’s offer of settlement could eliminate a court’s jurisdiction to adjudicate potentially costly class actions. Id. [Back to text]
614
The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 405–407 (1980). On the implications of Geraghty, which the Court has not returned to, see Hart & Wechsler (6th ed.), supra at 194–198. [Back to text]
615
Geraghty, 445 U.S. at 404 & n.11. [Back to text]
616
569 U.S. ___, No. 11–1059, slip op. (2013). [Back to text]
617
For a masterful discussion of the issue in both criminal and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731 (1991). [Back to text]
618
Stovall v. Denno, 388 U.S. 293, 301 (1967). [Back to text]
619
England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S. 471, 490 (1972). [Back to text]
620
Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S. 13 (1964). [Back to text]
621
Because of shifting coalitions of Justices, Justice Harlan complained, the course of retroactivity decisions “became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S. 667, 676 (1971) (separate opinion). [Back to text]
622
Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity derived from the Blackstonian notion “that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ ” Linkletter v. Walker, 381 U.S. 618, 622–23 (1965) (quoting 1 W. Blackstone, Commentaries *69). [Back to text]
623
Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973). [Back to text]
624
Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). [Back to text]
625
Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972). [Back to text]
626
Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549–50, 551–52 (1982). [Back to text]
627
Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977). [Back to text]
628
United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973). [Back to text]
629
Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell has also strongly supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246–248 (1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in judgment). [Back to text]
630
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)). [Back to text]
631
489 U.S. 288 (1989). [Back to text]
632
492 U.S. 302 (1989). [Back to text]
633
Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” and if it was not “an illogical or even a grudging application” of the prior decision. Butler v. McKellar, 494 U.S. 407, 412–415 (1990). For additional elaboration on “new law,” see O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998). [Back to text]
634
For an example of the application of the Teague rule in federal collateral review of a federal court conviction, see Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013). See also Welch v. United States, 578 U.S. ___, No. 15–6418, slip op. at 7 (2016) (assuming, without deciding, that the Teague framework “applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction”). [Back to text]
635
Whorton v. Bockting, 549 U.S. 406, 416 (2007). [Back to text]
636
Teague v. Lane, 489 U.S. 288, 307, 311–313 (1989) (plurality opinion); see also Butler v. McKellar, 494 U.S. 407, 415–416 (1990). [Back to text]
637
See Montgomery v. Louisiana, 577 U.S. ___, No. 14–280, slip op. at 12 (2016) (“If a State may not constitutionally insist that a prisoner remain in jail on federal habeas review, it may not constitutionally insist on the same result in its own postconviction proceedings.”). The Court reasoned as such because new substantive rules constitute wholesale prohibitions on the state’s power to convict or sentence a criminal defendant under certain circumstances, making the underlying conviction or sentence void and providing the state with no authority to leave the underlying judgment in place during collateral review. Id. at 10–11; see also id. at 12 (“A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner’s sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids.”). [Back to text]
638
See Montgomery, slip op. at 8 (“[T]he Constitution requires substantive rules to have retroactive effect regardless of when a conviction became final.”) [Back to text]
639
Id. at 9. [Back to text]
640
Id. [Back to text]
641
Id. [Back to text]
642
See Welch, slip op. at 11; see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Accordingly, the Court has rejected the argument that the underlying “source” of a constitutional rule—i.e., the fact that a constitutional rule on its face creates substantive or procedural rights— can determine the retroactivity of a ruling. See Welch, slip op. at 10 (“[T]his Court has determined whether a new rule is substantive . . . by considering the function of the rule, not its underlying constitutional source.”). [Back to text]
643
Sawyer v. Smith, 497 U.S. 227, 242 (1990) (emphasis in original) (internal quotations and citations omitted). For application of these principles, see Montgomery, slip op. at 14–17 (holding that the Court, in interpreting the Eighth Amendment to prohibit mandatory life without parole for juvenile offenders, “did announce a new substantive rule” because the prohibition necessarily placed beyond the power of a state a particular punishment with respect to the “vast majority of juvenile offenders”). See also Welch, slip op. at 9–11 (holding that a conviction under a statute that was later found to be void for vagueness is a substantive rule, as the invalidity of the law under the Due Process Clause altered the “range of conduct or class of persons that the law punishes.”); Schriro, 542 U.S. at 352 (holding that the requirement that aggravating factors justifying the death penalty be found by the jury was a new procedural rule that did not apply retroactively). [Back to text]
644
The standard that has been applied was enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Briefly, the question of retroactivity or prospectivity was to be determined by a balancing of the equities. To be limited to prospectivity, a decision must have established a new principle of law, either by overruling clear past precedent on which reliance has been had or by deciding an issue of first impression whose resolution was not clearly foreshadowed. The courts must look to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Then, the courts must look to see whether a decision to apply retroactively a decision will produce substantial inequitable results. Id. at 106–07. American Trucking Assn’s v. Smith, 496 U.S. 167, 179–86 (1990) (plurality opinion). [Back to text]
645
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Trucking Assn’s, Inc. v. Smith, 496 U.S. 167 (1990). [Back to text]
646
The holding described in the text is expressly that of only a two-Justice plurality. 501 U.S. at 534–44 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id. at 544, 547, 548 (respectively), but on other, and in the instance of the three latter Justices, and broader justifications. Justices O’Connor and Kennedy and Chief Justice Rehnquist dissented. Id. at 549. [Back to text]
647
501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy and Chief Justice Rehnquist), and id. at 544 (Justice White concurring). See also Smith, 496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief Justice Rehnquist). [Back to text]
648
501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). In Smith, 496 U.S. at 205, these three Justices had joined the dissenting opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect. [Back to text]
649
509 U.S. 86 (1993). [Back to text]
650
509 U.S. at 97. Although the conditional language in this passage might suggest that the Court was leaving open the possibility that in some cases it might rule purely prospectively, and not even apply its decision to the parties before it, other language belies that possibility. “This rule extends Griffith’s ban against ‘selective application of new rules.’ ” (Citing Griffith, 479 U.S. at 323.) Because Griffith rested in part on the principle that “the nature of judicial review requires that [the Court] adjudicate specific cases,” 479 U.S. at 322, deriving from Article III’s case or controversy requirement for federal courts and forbidding federal courts from acting legislatively, “ ‘the Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.’ ” 509 U.S. at 97 (quoting Smith, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which he denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id. at 105. [Back to text]
651
509 U.S. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil. [Back to text]
652
But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation of that state’s statute of limitations in certain suits, in an opinion by Justice Breyer, Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184–85 (1995) (“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville Casket). [Back to text]
653
Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966). See Hart & Wechsler (6th ed.), supra at 222–248. [Back to text]
654
Frank, Political Questions, in SUPREME COURT AND SUPREME LAW (E. Cahn, ed., 1954), at 36. [Back to text]
655
The concept of political question is “more amenable to description by infinite itemization than by generalization” Id. [Back to text]
656
Baker v. Carr , 369 U.S. 186, 217 (1962). [Back to text]
657
369 U.S. at 208–232. [Back to text]
658
3 U.S. (3 Dall.) 199 (1796). [Back to text]
659
25 U.S. (12 Wheat.) 19 (1827). [Back to text]
660
5 U.S. (1 Cr.) 137 (1803). [Back to text]
661
5 U.S. (1 Cr.) at 170. In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: “The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.” It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838). [Back to text]
662
48 U.S. (7 How.) 1 (1849). [Back to text]
663
Cf. Baker v. Carr, 369 U.S. 186, 218–22 (1962); id. at 292–97 (Justice Frankfurter dissenting). [Back to text]
664
Luther, 48 U.S. (7 How.) at 40. [Back to text]
665
48 U.S. at 42 (citing Article IV, § 4). [Back to text]
666
48 U.S. at 42. [Back to text]
667
Id. [Back to text]
668
48 U.S. at 43. [Back to text]
669
48 U.S. at 44. [Back to text]
670
369 U.S. 186 (1962). [Back to text]
671
Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947). [Back to text]
672
South v. Peters, 339 U.S. 276 (1950) (county unit system for election of state-wide officers with vote heavily weighted in favor of rural, lightly populated counties). [Back to text]
673
MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population). [Back to text]
674
Article IV, § 4. [Back to text]
675
As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900). [Back to text]
676
Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912) (challenging tax initiative); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment procedure); O’Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drainage districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) (workmen’s compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers). [Back to text]
677
All the cases, however, predate the application of the doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and alteration of school districts “compatible” with a republican form of government); Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175–176 (1875) (denial of suffrage to women no violation of republican form of government). [Back to text]
678
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948). [Back to text]
679
United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). [Back to text]
680
Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884). [Back to text]
681
United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). [Back to text]
682
United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the “act of state” doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See also First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611 (1983); W.S. Kirkpatrick & Co. v. Environmental Tectronics Corp., U.S. 400 (1990). [Back to text]
683
Doe v. Braden, 57 U.S. (16 How.) 635 (1853). [Back to text]
684
Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947). [Back to text]
685
Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913). [Back to text]
686
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 229–230 (1986). [Back to text]
687
Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886). [Back to text]
688
Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually but not always have presented political questions. The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S. 28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). [Back to text]
689
Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 (1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990). [Back to text]
690
Coleman v. Miller, 307 U.S. 433 (1939) (Congress’s discretion to determine what passage of time will cause an amendment to lapse, and effect of previous rejection by legislature). [Back to text]
691
Missouri Pac. Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City National Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); Hawke v. Smith (No. 1), 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitutional amendments). [Back to text]
692
Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 (1938). [Back to text]
693
See, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S. 433, 453, (1939). [Back to text]
694
See, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), in which Chief Justice Taney wondered how a court decision in favor of one faction would be received with Congress seating the representatives of the other faction and the President supporting that faction with military force. [Back to text]
695
Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at 268, 287, 295 (Justice Frankfurter dissenting) [Back to text]
696
For a statement of the “prudential” view, see generally A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962), but see esp. 23–28, 69–71, 183–198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting.) The opposing view, which has been called the “classicist” view, is that courts are duty bound to decide all cases properly before them. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW: SELECTED ESSAYS 11–15 (1961). [Back to text]
697
369 U.S. 186 (1962). [Back to text]
698
Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions). [Back to text]
699
See, e.g., Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted. [Back to text]
700
Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the governor of a state that insurrection existed or was imminent justifying suspension of constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 (1924). [Back to text]
701
369 U.S. at 210. [Back to text]
702
369 U.S. at 211. [Back to text]
703
369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the existence of one or more of these factors in a case involving, say, a state, might still give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that nonjusticiability of a political question is “primarily” a function of separation of powers but in the immediately preceding paragraph he states that “it is” the intrafederal aspect “and not the federal judiciary’s relationship to the States” that raises political questions. But subsequently, id. at 226, he balances the present case, which involves a state and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why Guarantee Clause cases are political presents much the same difficulty, id. at 222–26, because he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no “criteria by which a court could determine which form of government was republican,” id. at 222, a factor not present when the Equal Protection Clause is relied on. Id. at 226. [Back to text]
704
Bond v. Floyd, 385 U.S. 116 (1966). [Back to text]
705
395 U.S. 486 (1969). [Back to text]
706
Baker v. Carr, 369 U.S. 186, 217 (1962). [Back to text]
707
395 U.S. at 319. [Back to text]
708
395 U.S. at 519–47. The Court noted, however, that even if this conclusion had not been reached from unambiguous evidence, the result would have followed from other considerations. Id. at 547–48. [Back to text]
709
See H. Wechsler, supra at 11–12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Id. Chief Justice Warren noted that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case and we express no view as to its resolution.” Powell v. McCormack, 395 U.S. 486, 521 n.42 (1969). See also id. at 507 n.27 (reservation on limitations that might exist on Congress’s power to expel or otherwise punish a sitting member). [Back to text]
710
395 U.S. at 548–549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591–96 (D.C. Cir. 1968). [Back to text]
711
Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem to underlay, though they did not provide the formal basis for, the decisions in O’Shea v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974). [Back to text]
712
413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise to both cases. [Back to text]
713
O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted by the passage of time and was not thereafter considered on the merits by the Court. Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4, and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential action). But see id. at 997, 998 (Justice Powell rejecting analysis for this type of case). [Back to text]
714
Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236–38. [Back to text]
715
Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymandering is justiciable). But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable standard has been found for measuring burdens on representational rights imposed by political gerrymandering). [Back to text]
716
United States v. Munoz-Flores, 495 U.S. 385 (1990). [Back to text]
717
495 U.S. at 390 (emphasis in original). [Back to text]
718
495 U.S. at 393. [Back to text]
719
495 U.S. at 393–95. [Back to text]
720
495 U.S. at 395–96. [Back to text]
721
566 U.S. ___, No. 10–699, slip op. (2010). [Back to text]
722
This left it to Justice Sotomayor and Justice Breyer to raise and address the other considerations, respectively, in concurrence and dissent. [Back to text]
723
566 U.S. ___, No. 10–699, slip op. at 8. [Back to text]
724
See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); and Bush v. Gore, 531 U.S. 98 (2000). [Back to text]
725
12th Amendment. [Back to text]
726
See the richly detailed summary and citations to authority in G. GUNTHER, CONSTITUTIONAL LAW 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. HAND, THE BILL OF RIGHTS (1958); H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW:SELECTED ESSAYS 1–15 (1961); A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 1–33 (1962); R. BERGER, CONGRESS V. THE SUPREME COURT (1969). For an extensive historical attack on judicial review, see 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES chs. 27–29 (1953), with which compare Hart, Book Review, 67 HARV. L. REV. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961, in C. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1–34 (1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well. [Back to text]
727
5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). [Back to text]
728
J. Goebel, supra at 60–95. [Back to text]
729
Id. at 96–142. [Back to text]
730
M. Farrand, supra at 97–98 (Gerry), 109 (King), 2 id. at 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id. at 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. “Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.” 2 id. at 298. “Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” Id. at 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (1836). 131 (Samuel Adams, Massachusetts), 196–197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445–446. 478 (Wilson, Pennsylvania), 3 id. at 324–25, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 (Steele, North Carolina), 156–157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id. at 553–54. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. THE FEDERALIST (J. Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524–530, 541–552 (Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers. To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799: “On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 412 (F. Wharton ed., 1849). Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights,” 1 ANNALS OF CONGRESS 457 (1789); 5 WRITINGS OF JAMES MADISON 385 (G. Hunt ed., 1904). Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.” Id. at 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, though milder, and more restrained than one authored by Jefferson and passed by the Kentucky legislature, asserted the power of the states, though not of one state or of the state legislatures alone, to “interpose” themselves to halt the application of an unconstitutional law. 3 I. BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION, 1787–1800 460–464, 467–471 (1950); Report on the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341–406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, supra, 481–485, 488–489. The various statements made and positions taken by the Framers have been culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3–4. [Back to text]
731
Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), and “Finality of Judgment as an Attribute of Judicial Power,” supra. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in J. Goebel, supra, at 589–592. [Back to text]
732
In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest “federal question” jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In § 25, 1 Stat. 85, Congress provided for review by the Supreme Court of final judgments in state courts (1) “. . . where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;” (2) “. . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;” or (3) “. . . where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed” thereunder. The ruling below was to be “re-examined and reversed or affirmed in the Supreme Court . . . .” [Back to text]
733
See in particular the debate on the President’s removal powers, discussed supra, “The Removal Power” with statements excerpted in R. Berger, supra at 144–150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107–124. [Back to text]
734
5 U.S. (1 Cr.) 137 (1803). [Back to text]
735
THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552. [Back to text]
736
Id., No. at 78, 525. [Back to text]
737
1 Stat. 73, 80. [Back to text]
738
The section first denominated the original jurisdiction of the Court and then described the Court’s appellate jurisdiction. Following and indeed attached to the sentence on appellate jurisdiction, being separated by a semicolon, is the language saying “and shall have power to issue . . . writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” The Chief Justice could easily have interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the Court an original jurisdiction to issue writs of mandamus per se. [Back to text]
739
Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173–180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L. J. 1. [Back to text]
740
5 U.S. at 176. One critic has written that by this question Marshall “had already begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.” A. Bickel, supra at 3. Marshall, however, soon reached this question, though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177–78. [Back to text]
741
5 U.S. at 176–77. [Back to text]
742
5 U.S. at 177. [Back to text]
743
5 U.S. at 178. [Back to text]
744
5 U.S. at 177–78. [Back to text]
745
5 U.S. at 178. [Back to text]
746
5 U.S. at 178. The reference is, of course, to the first part of clause 1, § 2, Art. III: “The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .” Compare A. Bickel, supra at 5–6, with R. Berger, supra at 189–222. [Back to text]
747
5 U.S. at 179. [Back to text]
748
5 U.S. at 179–80. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, supra at 7–8, with R. Berger, supra at 237–244. [Back to text]
749
5 U.S. at 180. Compare A. Bickel, supra at 8–12, with R. Berger, supra at 223–284. [Back to text]
750
E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 75–78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860, 120 U. P1790–1860, 120 U. PA. L. REV. 1166 (1972). [Back to text]
751
2 W. Crosskey, supra at 989. See the famous remark of Holmes: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” O. HOLMES, COLLECTED LEGAL PAPERS 295–296 (1921). [Back to text]
752
1 Stat. 73, 85, quoted supra. [Back to text]
753
Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796). [Back to text]
754
Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by appeal from a circuit court and not from a state court under § 25. Famous early cases coming to the Court under § 25 in which state laws were voided included Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). [Back to text]
755
14 U.S. (1 Wheat.) 304 (1816). [Back to text]
756
19 U.S. (6 Wheat.) 264 (1821). [Back to text]
757
19 U.S. at 379. [Back to text]
758
19 U.S. at 422–23. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the states from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. See also Cooper v. Aaron, 358 U.S. 1 (1958). [Back to text]
759
The six forms, or “modalities” as he refers to them, are drawn from P. BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982); P. BOBBITT, CONSTITUTIONAL INTERPRETATION (1991). Of course, other scholars may have different categories, but these largely overlap these six forms. E.g., Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987); Post, Theories of Constitutional Interpretation, in LAW AND THE ORDER OF CULTURE 13–41 (R. Post ed., 1991). [Back to text]
760
Among the vast writing, see, e.g., R. BORK, THE TEMPTING OF AMERICA (1990); J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); L. TRIBE & M. DORF, ON READING THE CONSTITUTION (1991); H. WELLINGTON, INTERPRETING THE CONSTITUTION (1990); Symposium, Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. REV. 259 (1981); Symposium, Judicial Review and the Constitution: The Text and Beyond, 8 U. DAYTON L. REV. 43 (1983); Symposium, Judicial Review Versus Democracy, 42 OHIO ST. L.J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77 VA. L. REV. 631 (1991). See also Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989). [Back to text]
761
This mode is most strongly association with C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). [Back to text]
762
E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a Jurisprudence of Original Intention, 45 PUB. ADMIN. REV. 701 (1985); Addresses: Construing the Constitution, 19 U. C. DAVIS L. REV. 1 (1985), containing addresses by Justice Brennan, id. at 2, Justice Stevens, id. at 15, and Attorney General Meese. Id. at 22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976). [Back to text]
763
5 U.S. (1 Cr.) 137 (1803). [Back to text]
764
19 U.S. (6 Wheat.) 264, 404, (1821). [Back to text]
765
See, e.g., Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936). [Back to text]
766
“Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936). [Back to text]
767
The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA, 297 U.S. 288, 346–56 (1936) (Justice Brandeis concurring). [Back to text]
768
Powell v. McCormack, 395 U.S. 486, 548–49 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967). [Back to text]
769
28 U.S.C. §§ 12541257. See F. Frankfurter & J. Landis, supra at ch. 7. “The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court’s appellate jurisdiction, the petitioner has already received one appellate review of his case . . . . If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.” Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It “is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari.” Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68 HARV. L. REV. 20, 51 (1954). [Back to text]
770
See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, supra at 111–198, with Gunther, The Subtle Vices of the “Passive Virtues”: A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964). [Back to text]
771
Rescue Army v. Municipal Court, 331 U.S. 549, 568–75 (1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 U.S. 316, 324–325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial restraint as well as considerations of comity underlie the Court’s abstention doctrine when the constitutionality of state laws is challenged. [Back to text]
772
Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947). [Back to text]
773
The Origin and Scope of the American Doctrine of Constitutional Law, in J. THAYER, LEGAL ESSAYS 1, 21 (1908). [Back to text]
774
See Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 395, 399 (1798). [Back to text]
775
E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960). [Back to text]
776
“But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.” Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923). [Back to text]
777
Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence, id. at 89–97, is a lengthy critique and review of the “preferred position” cases up to that time. The Court has not used the expression in recent years but the worth it attributes to the values of free expression probably approaches the same result. Today, the Court’s insistence on a “compelling state interest” to justify a governmental decision to classify persons by “suspect” categories, such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the exercise of a “fundamental” interest, such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of unconstitutionality. [Back to text]
778
“We fully understand . . . the powerful argument that can be made against the wisdom of this legislation, but on that point we have no concern.” Noble State Bank v. Haskell, 219 U.S. 104 (1911) (Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting). A supposedly hallowed tenet is that the Court will not look to the motives of legislators in determining the validity of a statute. Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403 U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secular or religious purpose is one of the parts of the tripartite test under the Establishment Clause. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissent). Other constitutional decisions have also turned upon the Court’s assessment of purpose or motive. E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 (1922). [Back to text]
779
Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Justice Black dissenting). But note above the reference to the ethical mode of constitutional argument. [Back to text]
780
E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297 U.S. 1 (1936). [Back to text]
781
Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). See also Fletcher v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810); Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 531 (1871). [Back to text]
782
Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78–79 (1911); Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935). [Back to text]
783
E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967). But see McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the “compelling state interest” test in certain areas of equal protection litigation also bespeaks less deference to the legislative judgment. [Back to text]
784
Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014); United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Rust v. Sullivan, 500 U.S. 173, 190–91 (1991); Public Citizen v. Department of Justice, 491 U.S. 440, 465–67 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). [Back to text]
785
E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions); United States v. Harriss, 347 U.S. 612 (1954) (lobbying act); United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute). [Back to text]
786
United States v. Locke, 471 U.S. 84, 96 (1984) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)). [Back to text]
787
Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204–07 (Justice Blackmun dissenting), and 223–225 (Justice O’Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929–930 (1991). [Back to text]
788
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). In Kimbrough v. United States, 128 S. Ct. 558, 577 (2007), Justice Thomas, dissenting, referred to “our longstanding presumption of the severability of unconstitutional applications of statutory provisions.” [Back to text]
789
See Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, No. 15–274, slip op. at 37 (2016) (noting that while as a “general matter” courts will honor a legislature’s preference with regard to severability, severability clauses do not impose a requirement on courts that are confronted with facially unconstitutional statutory provisions, as such an approach would “inflict enormous costs on both courts and litigants” in parsing out what remains of the statute); see also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (discussing how a severability clause is not grounds for a court to “devise a judicial remedy that . . . entail[s] quintessentially legislative work.”); Reno v. ACLU, 521 U.S. 844, 884–85 n.49 (1997) (noting the limits on how broadly a court can read a severability clause); see generally Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (concluding that a severability clause is an “aid merely; not an inexorable command.”) [Back to text]
790
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–408 (1932) (Justice Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self-consciously elaborate opinion for a plurality in Planned Parenthood v. Casey, 505 U.S. 833, 854–69 (1992) (Justices O’Connor, Kennedy, and Souter) (acknowledging that as an original matter they would not have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might consider it wrongly decided, but nonetheless applying the principles of stare decisis— they stressed the workability of the case’s holding, the fact that no other line of precedent had undermined Roe, the vitality of that case’s factual underpinnings, the reliance on the precedent in society, and the effect upon the Court’s legitimacy of maintaining or overruling the case). See id. at 953–66 (Chief Justice Rehnquist concurring in part and dissenting in part), 993–1001 (Justice Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827–30 (1991) (suggesting, inter alia, that reliance is relevant in contract and property cases), and id. at 835, 842–44 (Justice Souter concurring), 844, 848–56 (Justice Marshall dissenting). [Back to text]
791
Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id. at 19 (Justice Harlan concurring in part and dissenting in part); Williams v. Florida, 399 U.S. 78, 117–119 (1970) (Justice Harlan concurring in part and dissenting in part). Recent discussions of and both applications of and refusals to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251–52 (1998), and id. at 260–63 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S. 3, 20–2 (1997); Agostini v. Felton, 521 U.S. 203, 235–36 (1997), and id. at 523–54 (Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854–56 (1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), with which compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (plurality opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61–73 (1996) (discussing policy of stare decisis, why it should not be followed with respect to a 1989 decision, and overruling that precedent), with which compare the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200–01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes those issues not raised or argued). [Back to text]
792
157 U.S. 429, 574–579 (1895). [Back to text]
793
See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 171–175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id. at 175 n.1, with id. at 190–205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also Flood v. Kuhn, 407 U.S. 258 (1972). [Back to text]
794
E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339–340 (1962) (Justice Harlan dissenting); Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). Compare Justice Harlan’s views in Mapp v. Ohio, 367 U.S. 643 (1961) (dissenting), with Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (opinion of the Court). [Back to text]
795
Note that, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the Court purported to uphold and retain the “central meaning” of Roe v. Wade, it overruled several aspects of that case’s requirements. See also, e.g., the Court’s treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330, 337, n.7 (1972). See also id. at 361 (Justice Blackmun concurring.) [Back to text]
796
Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting). [Back to text]
797
B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921). [Back to text]
798
Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id. at 507 (Justice Black). [Back to text]
799
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (dissenting). [Back to text]
800
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821). [Back to text]
801
M. Farrand, supra at 22, 211–212, 220, 244; 2 id. at 146–47, 186–87. [Back to text]
802
Id. at 423–24, 430, 431. [Back to text]
803
1 Stat. 73. The district courts were given cognizance of “suits for penalties and forfeitures incurred, under the laws of the United States” and “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States . . . .” Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions, see supra. [Back to text]
804
Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793, § 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted. [Back to text]
805
Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142; Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15. [Back to text]
806
Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, supra. [Back to text]
807
For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–748. [Back to text]
808
28 U.S.C. § 1331(a). The original Act was worded slightly differently. [Back to text]
809
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821). [Back to text]
810
C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 17 (4th ed. 1983). [Back to text]
811
See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. ___, No. 14–1132, slip op. at 9–10 (2016) (“This Court has long read the words ‘arising under’ in Article III to extend quite broadly, to all cases in which a federal question is an ingredient of the action . . . In the statutory context, however, we . . . give those same words a narrower scope in the light of § 1331’s history, the demands of reason and coherence, and the dictates of sound judicial policy.”) (internal brackets, citations, and quotations omitted). [Back to text]
812
See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983). [Back to text]
813
Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising under the Constitution or federal law, then federal jurisdiction exists even though on the merits the party may have no federal right. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course, dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933). [Back to text]
814
Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974). [Back to text]
815
Such was the rule derived from Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). [Back to text]
816
American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913). [Back to text]
817
Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936). [Back to text]
818
299 U.S. at 112–13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 U.S. 426 (1964); Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921). [Back to text]
819
For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959). [Back to text]
820
E.g., Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also id. at 24 (Chief Justice Waite dissenting). [Back to text]
821
§ 12, 1 Stat. 79. [Back to text]
822
The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969), and in Hart & Wechsler (6th ed.), supra at 396–398. See 28 U.S.C. §§ 1442, 1442a. [Back to text]
823
Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25 Stat. 433. [Back to text]
824
28 U.S.C. § 1441. [Back to text]
825
28 U.S.C. § 1443. [Back to text]
826
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments. [Back to text]
827
Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429–430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868). [Back to text]
828
100 U.S. 257 (1880). [Back to text]
829
100 U.S. at 263–64. [Back to text]
830
100 U.S. at 264–65. [Back to text]
831
Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991). [Back to text]
832
Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975). [Back to text]
833
22 U.S. (9 Wheat.) 738 (1824). [Back to text]
834
The First Bank could not sue because it was not so authorized. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall interpreted as conveying jurisdiction, was long construed simply to give a party the right to sue and be sued without itself creating jurisdiction, Bankers Trust Co. v. Texas & P. Ry., 241 U.S. 295 (1916), but, in American National Red Cross v. S. G., 505 U.S. 247 (1992), a 5-to-4 decision, the Court held that, when a federal statutory charter expressly mentions the federal courts in its “sue and be sued” provision, the charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal courts, without expressly mentioning them, does not confer jurisdiction. [Back to text]
835
115 U.S. 1 (1885). [Back to text]
836
§ 4, 22 Stat. 162. [Back to text]
837
§ 5, 38 Stat. 803. [Back to text]
838
See 28 U.S.C. § 1349. [Back to text]
839
§ 301, 61 Stat. 156 (1947), 29 U.S.C. § 185. [Back to text]
840
Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented a federal question sufficient for federal jurisdiction. Id. at 449–52, 459–61 (opinion of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 371 U.S. 195 (1962). [Back to text]
841
Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). [Back to text]
842
Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however, to be totally disregarded. “State law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy . . . . Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957). [Back to text]
843
For example, when federal statutes create new duties without explicitly creating private federal remedies for their violation, the willingness of the federal courts to infer private causes will implicate the federal courts’ workload. During the mid- 20th century, the Court would imply causes of action that were not explicit in the text of a statute as a routine matter. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (“We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.”); Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies.”). In the late 1970s, the Court began to move away from such an approach, see Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (“When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.”), and more recently has instead held that for a court to recognize a statutory cause of action, the statute itself must “displa[y] an intent to create” both a private right and a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In the context of constitutional rights, the Court in 1971 recognized (in the absence of any federal statute) an implied damages remedy to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Since Bivens, the Court has recognized a similar remedy for a violation of the equal protection component of the Fifth Amendment’s Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amendment Cruel and Unusual Punishment Clause violation, see Carlson v. Green, 446 U.S. 14, 19 (1980). However, these three cases are anomolous and represent the “only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” See Ziglar v. Abbasi, 582 U.S. ___, No. 15–1358, slip op. at 7 (2017). Instead, in a series of cases, the Court has rejected extending the Bivens remedy to other contexts. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting an Eighth Amendment-based Bivens claim against employees of a privately operated federal prison); Wilkie v. Robbins, 551 U.S. 537, 547–48, 562 (2007) (refusing to recognize a Bivens claim against officials of the Bureau of Land Management accused of harassment and intimidation aimed at extracting an easement across private property in violation of the Fourth and Fifth Amendments); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to extend Bivens to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471 (1994) (declining to imply a Bivens cause of action directly against an agency of the Federal Government); Schweiker v. Chilicki, 487 U.S. 412 (1988) (refusing to infer a damages action against individual government employees alleged to have violated due process in their handling of Social Security applications); United States v. Stanley, 483 U.S. 669, 671–72, 683–84 (1987) (holding that Bivens does not extend to any claim incident to military service); Bush v. Lucas, 462 U.S. 367, 389 (1983) (declining to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment); Chappell v. Wallace, 462 U.S. 296, 298 (1983) (declining to extend Bivens to claims by military personnel against superior officers). Recognizing that “it is a significant step under separation-of-powers principles for a court to determine that it has the authority . . . to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation,” the Court in Ziglar v. Abbasi, without overturning Bivens, held that if a case is different in a meaningful way from the three previous instances in which the Court recognized a damages remedy, Bivens should not be extended to a new context if there are “special factors” counseling hesitation. See Ziglar, slip op. at 10–16. In particular, if there are reasons to think that Congress might have questioned the need for a damages remedy, courts must refrain from creating such a remedy. Id. at 10. Moreover, the Court supported its conclusion by noting that courts generally are not well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Id. at 12. In addition “federal common law” may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their “arising under” jurisdiction. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); Int’l Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987). The Court, however, has been somewhat wary of finding “federal common law” in the absence of some congressional authorization to formulate substantive rules, see Texas Industries v. Radcliff Materials, 451 U.S. 630, 640 (1981), and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 at 107 (1981). [Back to text]
844
28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978); Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to “the Constitution and laws of the United States,” when the substantive and jurisdictional aspects were separated and codified, § 1983 retained the all-inclusive “laws” provision, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was a jurisdictional amount provision in the federal question statute but is of little significance today. [Back to text]
845
See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that only cases involving personal rights, that could not be valued in dollars, could be brought under § 1343(3), and that cases involving property rights, which could be so valued, had to be brought under the federal question statute. This attempted distinction was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546–48 (1972). On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978). See also Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compensatory damages must be based on injury to the plaintiff, not on some abstract valuation of constitutional rights). [Back to text]
846
28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. 94–574, 90 Stat. 2721; Pub. L. 96–486, 94 Stat. 2369. [Back to text]
847
Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). This had been the rule since at least McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice and waiting period before bringing suit in state court under § 1983, is preempted). [Back to text]
848
Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes. [Back to text]
849
Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94–559, 90 Stat. 2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980). [Back to text]
850
E.g., Civil Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat. 349 (1980), 42 U.S.C. §§ 1997et seq. [Back to text]
851
E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S. 651 (1977). [Back to text]
852
Maine v. Thiboutot, 448 U.S. 1 (1980). [Back to text]
853
Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534–543 (1974). [Back to text]
854
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822–28 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966). [Back to text]
855
Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of “ancillary jurisdiction”). [Back to text]
856
Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court held in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), held that, when a pendent claim of state law involves a claim that is against a state for purposes of the Eleventh Amendment, federal courts may not adjudicate it. [Back to text]
857
United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966). [Back to text]
858
The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship. [Back to text]
859
Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). [Back to text]
860
Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). [Back to text]
861
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