LECTURE #2:
The Judicial Concepts
Presented by
Derrick J. Johnson, MPA, JD
Honors Constitutional Law,
School for Advanced Studies
Federalism and Judicial Review


Federalism is defined as the division of power and
the relationship between the state government and
the federal government.
The Supreme Court has often assumed the role of
umpire between the federal government and the
states by utilizing its power of judicial review.
Federalism and Judicial Review


The supremacy of the federal judiciary over the state courts can be
traced to the early days of the Marshall Court.
Martin v. Hunter’s Lessee (1816)



The state of Virginia granted the same tract of land to the Appellee,
Hunter, that a federal treaty give to the Appellant, Martin. The Supreme
Court of the United States declared that Appellant was so entitled, but the
Virginia Court of Appeals, to which the case was remanded, refused to
carryout the Supreme Court’s judgment.
The United States Constitution (Constitution) and the laws of the United
States made in pursuance thereof shall be the supreme law of the land and
the judges in every state shall be bound thereby.
It’s important to recognize that this case pertains to the power of the
federal courts to review decisions by state courts. In Marbury v. Madison,
at issue was as a federal court’s power to review an act by another branch
of the federal government.
Federalism and Judicial Review


The Court has also assumed the role of champion of he rights of
the citizen against the state government.
Moore v. City of East Cleveland (1977)




A Cleveland, Ohio housing ordinance limited occupancy of a dwelling unit
to members of a single family.
The ordinance defines “family” as including only a few categories of related
individuals. The Appellant, Inez Moore challenged the constitutionality of
the ordinance because her family failed to meet the legal definition of
family under the Cleveland ordinance. (She lived with her two grandsons
who where only first cousins).
The Ohio Court of Appeals affirmed the judgment. The Ohio Supreme
Court denied review of the judgment.
The U.S. Supreme Court held that related individuals have a fundamental
right to live with one another.
Federalism and Judicial Review


However, there are limitations to this power. Congress has the
power, through Article III to limit the scope of the Court’s
appellate powers:
Ex Parte McCardle (1869)
 McCardle, a newspaper editor, was arrested for writing articles
critical of Reconstruction, petitioned the Supreme Court of the
United States (United States) for a writ of habeas corpus.
McCardle argued the Military Reconstruction Act (the Act) and
his prosecution were unconstitutional.
 Congress, by repealing the United State Supreme Court’s
(Supreme Court) appellate review of writs of habeas corpus,
effectively took jurisdiction over McCardle’s case away from
the Supreme Court.
Adequate and Independent State
Grounds Doctrine

The adequate and independent state ground doctrine states that
when a litigant petitions the U.S. Supreme Court to review the
judgment of a state court which rests upon both federal and nonfederal (state) law, the U.S. Supreme Court does not have
jurisdiction over the case if the state ground is
 (1) “adequate” to support the judgment, and
 (2) “independent” of federal law.
Michigan v. Long (1983)
 David Long was convicted for possession of marijuana found
by police in the passenger compartment and trunk of the
automobile that he was driving. Long filed a motion to
suppress the marijuana taken from his vehicle.
Adequate and Independent State
Grounds Doctrine

The adequate and independent state ground doctrine states that
when a litigant petitions the U.S. Supreme Court to review the
judgment of a state court which rests upon both federal and nonfederal (state) law, the U.S. Supreme Court does not have
jurisdiction over the case if the state ground is
 (1) “adequate” to support the judgment, and
 (2) “independent” of federal law.
Michigan v. Long (1983)
 David Long was convicted for possession of marijuana found
by police in the passenger compartment and trunk of the
automobile that he was driving. Long filed a motion to
suppress the marijuana taken from his vehicle.
Adequate and Independent State
Grounds Doctrine

If there is not a plain statement that a lower state court’s
decision rests upon adequate and independent state grounds
and when the state appears to have rested its decision primarily
on federal law, the Supreme Court will assume that the
decision is in fact based on federal law..
Bush v. Gore (2000)

Facts: The 2000 presidential election was a close race between
Texas Governor George W. Bush and Vice-President Al Gore. On
election night, the results were inconclusive. Gore had won the
popular vote, but neither candidate had won the electoral vote.
The election outcome depended on Florida. After a series of
challenges in the state courts, the Florida Supreme Court ordered a
manual recount for voter’s cards to determine what ‘hanging
chads’ meant; there were a bunch of votes that didn’t count that
Gore wanted to be counted. However, there were different
methods for doing the recount all across the state. Bush argued
that this is unconstitutional because it violated the Equal
Protection and Due Process Clauses.

Issue: Did the FL SC establish new standards for resolving
Presidential election contests violating Art 2, § 1, cl.2 of
Constitution and also 3 USC § 5? Does the use of
standardless manual recounts violate the Equal Protection
and Due Process clauses?

Holding: The Court held that it did violate the Equal
Protection only. The failed to address the Due Process
issue.

Reasoning: “When the state legislature vests the right to
vote for President in its people, this right becomes
fundamental and one source of its fundamental nature lies
in the equal weight accorded to each vote and the equal
dignity owed to each voter.” A person’s vote cannot be
given disparate or diluted treatment.
Bush v. Gore (2000)
The problems with counting the
votes in Florida during the 2000
presidential election led to
widespread criticism of a long
accepted tradition in American
politics: local control of the
voting process.
 It was on this basis that many
criticized the Court’s decision for
violating the adequate and
independent state grounds
doctrine.

Eleventh Amendment

“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”

It is the 11th Amendment that grants sovereign immunity to
states. It was passed as a measure to overturn the Chisholm v.
Georgia case which allowed a citizen to sue a state.
Eleventh Amendment

Ex Parte Young (1908)


Minnesota Attorney General Edward
T. Young refused to enforce an
injunction against a state law that
sought to limit what railroads could
charge.
The Supreme Court provided an
important exception to the 11th
Amendment sovereign immunity
States enjoy: the Stripping Doctrine.
The Stripping Doctrine is a legal
fiction which allows injunctive relief
against what are essentially state
actions.
Eleventh Amendment


While the 11th Amendment immunizes States from actions by
private parties, the Stripping Doctrine argues that when a state
officer takes an unconstitutional action, she acts beyond the
scope of her authority, as no State could have authorized her
to act unconstitutionally.
When acting outside such authority the officer was "stripped"
of her official power and cannot invoke the State's immunity,
although she remains subject to the consequences of her
official conduct.
Eleventh Amendment

Seminole Tribe of Florida v. Florida (1996)
 The Seminole Tribe of Florida, sued the Respondents, the
State of Florida and its Governor, alleging that the
Respondents had refused to enter into any negotiation for
inclusion of gaming activities in a tribal state compact, thereby
violating the requirement of good faith negotiation contained
in the federal Indian Gaming Regulatory Act (the Act).
 Even when the United States Constitution vests in Congress
complete law-making authority over a particular area, the
Eleventh Amendment of the Constitution prevents
congressional authorization of suits by private parties against
unconsenting states.
Justiciability



Justiciability concerns the limits upon legal issues
over which a court can exercise its judicial
authority.
Justiciability in American law seeks to address
whether a court possesses the ability to provide
adequate resolution of the dispute
Where a court feels it cannot offer such a final
determination, the matter is not justiciable.
Justiciability Criteria

Justiciability is important because it is one of
several criteria that the U.S. Supreme Court use to
grant a writ of certiorari.

The justiciability criteria is as follows:


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1.) The petitioner must have standing
2.) The case must be a live case and controversy
3.) No Advisory Opinions
4.) No Political Questions
Standing


Standing is the term for the ability of a party to
demonstrate to the court sufficient connection
to and harm from the law or action challenged
to support that party's participation in the case.
Elements
Discrete and Palpable Injury
 Caused by Defendant's (alleged) Action
 Remediable by Court
 Plaintiff's personal rights at stake

Allen v. Wright (1984)
HOLDING
It is speculative whether plaintiffs’ claim of injury
arising from their children’s diminished ability to
receive an education in a racially integrated school.
 It fails because the alleged injury is not fairly traceable
to the Government conduct that is challenged as
unlawful.
 To recognize respondents’ standing to seek a
restructuring of the apparatus established by the
Executive Branch to fulfill its legal duties would be
contrary to the idea of separation of powers that
underlies standing doctrine.

Flast v. Cohen (1968)

FACTS
Flast brought suit, claiming standing
solely as taxpayers, seeking to enjoin
expenditure of federal funds on
religious schools.
 Appellant claimed such expenditures
violated the Establishment and Free
Exercise clauses of the First
Amendment of the United States
Constitution.

Flast v. Cohen (1968)


Taxpayer standing is appropriate when the plaintiff
challenges an enactment under the taxing and
spending clause of the Constitution and the
enactment exceeds specific constitutional limitations
on taxing and spending.
ISSUE

Have the Appellants established standing to bring
suit in an Article III court?
Flast v. Cohen (1968)

RULE OF LAW


Taxpayer standing is appropriate when the plaintiff
challenges an enactment under the taxing and
spending clause of the Constitution and the
enactment exceeds specific constitutional limitations
on taxing and spending.
DISSENT

Justice John Marshall Harlan argues that the two
requirements outlined by the majority do not
establish that P has a personal stake in the outcome.
Warth v. Seldin (1975)

FACTS


Numerous parties in Penfield, New York (Penfield) contested
the town’s zoning rules. Those parties argued that the rules
were enacted to restrict the building of low to moderate
income housing.
The four main categories of parties were:
 1) low-income persons seeking affordable housing,
 2) taxpayers from neighboring cities, claiming the lack of
housing in Penfield caused their cities to provide tax
incentives for the construction of similar housing,
increasing the neighboring cities’ tax burdens,
Warth v. Seldin (1975)



3) Metro-Act, a local action group, claiming that the refusal to
build low income housing prevented those with low to
moderate incomes from living in the town of Penfield
4) real estate developers who missed out on projects for the
construction of low to moderate income housing because of
the zoning rules.
ISSUE

Have the zoning rules in Penfield, NY caused the injuries of
which these plaintiffs complain and if so, what is the remedy?
Warth v. Seldin (1975)

HELD


None of the plaintiffs have standing to bring this action
against the city of Penfield, NY. None of the plaintiffs
provided evidence sufficient to show that “but for” the city’s
zoning rules, their respective injuries would not have occurred.
Further, any redress of potential injury was too vague and not
sufficiently concrete to meet the applicable standing
requirements.
The Supreme Court applied a two-part test in analyzing the
standing doctrine’s causation requirement when pursuing a
claim against a government entity.
 First, the moving party must demonstrate that “but for”
the challenged action, there would not have been an injury.
Warth v. Seldin (1975)

Second, the plaintiff(s) must show that a decision by the
Court will redress the injury. Whether the probability of
redress must be reasonable or substantial is determined on
a case by case basis
Allen v. Wright (1984)

FACTS

The Internal Revenue Service denied tax-exempt status to
racially discriminatory private schools and established
guidelines for determining whether particular schools were
racially nondiscriminatory.
Allen v. Wright (1984): Background


Wright and other parents (P) of black children who were
attending public schools undergoing desegregation brought a
nationwide class action lawsuit against the IRS and certain
private schools in federal district court, seeking declaratory
and injunctive relief.
Wright alleged that the IRS had not adopted standards and
procedures sufficient to satisfy its obligation to deny taxexempt status to racially discriminatory private schools,
thereby harming the plaintiffs directly and interfering with
their children’s opportunity to attend desegregated public
schools.
Allen v. Wright (1984): Background


Wright also alleged that many racially segregated private
schools had been created or expanded while the public
schools were undergoing desegregation, and that these
private schools had received tax exemptions despite the IRS
policy. There was no allegation that the children of the
plaintiffs had ever or would ever apply for admission to any
private school.
The District Court permitted intervention as a defendant by
petitioner Allen. The District Court dismissed the complaint
for lack of standing. The Court of Appeals reversed and the
Supreme Court granted cert.
Allen v. Wright (1984)

ISSUE

Did Wright have standing to bring
suit against the IRS for failing to
deny tax exempt status [501(c)(3)] to
racially discriminatory private
schools
Allen v. Wright (1984)
HOLDING
The plaintiffs’ claim that they are harmed
directly by the mere fact of Government
financial aid to discriminatory private
schools fails because it does not constitute
judicially cognizable injury.
 An asserted right to have the Government
act in accordance with law, without more, is
not sufficient to confer jurisdiction on a
federal court.

Mootness

Plaintiff must have live controversy
when complaint filed, AND
 at all stages of litigation
 burden on Defendant to establish mootness


Case can become moot
Parties die, events occur or lapse
 Controversy is settled


Exceptions to mootness
Voluntary cessation of harm
 Capable of repetition yet evading review

Capable of Repetition w/o Review

Moore v. Ogilvie (1969)
Election controversies are usually over by the time
case can be resolved
 Strict mootness doctrine would preclude review


Roe v. Wade (1973)

Pregnancy usually over before case decided
Defunis v. Odegaard (1974)

FACTS

Petitioner DeFunis, a white applicant to the University of
Washington law school, sued the Board of Regents of the
University of Washington in state court after he was denied
admission.
DeFunis alleged that the law school discriminated against
applicants of certain races and ethnicities, including whites, by
admitting minority applicants with significantly lower
undergraduate grades and LSAT scores.

Defunis v. Odegaard (1974)




DeFunis maintained that his rejection was predicated on racial
discrimination in violation of the Equal Protection Clause of the
Fourteenth Amendment.
The District Court granted DeFunis injunctive relief and ordered
the law school to admit him.
When DeFunis was in his second year of law school, the
Supreme Court of Washington reversed, holding that the
admissions policy was not unconstitutional.
The case came before the Supreme Court of the United States
for a full hearing when DeFunis was in his final year of law
school. Although the law school assured that it would allow
DeFunis to graduate regardless of the Court’s decision, both
parties contended that mootness did not exist to block formal
adjudication of the matter.
Defunis v. Odegaard (1974)

Law School usually over by time case is final
 But dispute not capable of repetition for him
 Thus, he might not have requisite stake in outcome
 Should case have been filed as class action?

ISSUE

Does an actual controversy exist between the parties, capable of redress
by the United States Supreme Court (Supreme Court)?
Defunis v. Odegaard (1974)

HELD
 The Court ordered the parties to address the issue of
mootness before they proceeded to any other claims in the
petition.
 The Court reasoned that “federal courts are without power to
decide questions that cannot affect the rights of litigants in
the cases before them.” This requirement stems from Article
III of the Constitution, under which the exercise of judicial
power depends upon the existence of a case or controversy.
 No amount of public interest would be sufficient to create an
actual case or controversy, and the case was rendered moot
because DeFunis was going to graduate from the law school
regardless of the Court’s ruling.
Ripeness

Principle: avoidance of premature litigation
Premature if harm lies in future without fair degree of
certainty that it will occur
 Premature if facts are yet to gel, such that precise
contours of controversy are unknown


Retrospective relief (damages)


All facts lie in the past; no conjecture necessary
Prospective relief (injunction; decl. relief)

Some (all) facts lie in the future; speculative?
City of Los Angeles v. Lyons (1983)

FACTS
 Adolph Lyons was pulled over by a Los Angeles police
officer for a traffic violation. He offered no resistance, and
without provocation, the police officer seized Lyons and
placed him in a chokehold, rendering Lyons unconscious.
 Lyons sued the municipality and sought damages and
injunctive relief in District Court for the Central District of
California. He asked the court to issue an injunction
preventing the police department from using chokeholds in
the future unless circumstances were to result in death or
serious bodily injury if force was withheld.
City of Los Angeles v. Lyons (1983)

ISSUES
Does this case present an
“actual case or controversy”
that can be determined by
the Supreme Court?
 If so, does Lyons have
standing to seek injunctive
relief against the
municipality of Los
Angeles?

City of Los Angeles v. Lyons (1983)

HELD
 This case does not present an “actual case or controversy” as
required in the Constitution under Article III. Past illegal
conduct, by itself, is insufficient to establish an actual case or
controversy for injunctive relief.
 Even though Lyons was injured by the police in the past, this
act alone does not establish that Lyons is threatened with
immediate injury or that he will be pulled over and placed in a
chokehold again.
Advisory Opinions

Before the court will hear a case, it must find that the parties
have a tangible interest at stake in the matter, the issue presented
must be "mature for judicial resolution" or ripe and a justiciable
issue must remain before the court throughout the course of the
lawsuit.
 Courts must decide cases;
 If those cases set up the constitution as a right or defense,
courts must be allowed to look to the constitution;
 If the constitution is supreme, it must provide the rule of
decision in every case in which invoked
 but only when necessary to decide actual cases
Opinion of the Justices

(1793)
Interpretation of peace treaty
Why did Washington/Jefferson want a judicial
interpretation of the treaty & US obligations?
 Why didn't Jay want to provide it?


"We exceedingly regret every event that may cause
embarrassment to your administration, but we derive
consolation from the reflection that your judgment will
discern what is right, and that your usual prudence,
decision, and firmness will surmount every obstacle to the
preservation of the rights, peace, and dignity of the United
States."
Opinion of the Justices

(1793)
Advisory Opinions

If not S.Ct., who gives President legal advice?
Art. II, § 2, ¶ 1: "the President … may require the Opinion, in
writing, of the principal Officer in each of the executive
Departments, upon any subject relating to the Duties of their
respective offices …“
 After Jay’s letter, Washington’s Cabinet formulated a set
of "regulations" reflecting executive interpretation of
international law -- for the President cannot fulfill his
obligation to take care that the law be executed without
making a determination of what it means.
Political Questions

Marbury:
“Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can
never be made in this court.”
“in cases in which the executive possesses a constitutional
or legal discretion, nothing can be more perfectly clear than
that their acts are only politically examinable.”
Political branch must have both
power and discretion
True for
congress
too?
Where Political Questions Arise

Foreign Relations:


Existence of Hostilities:


Finality of decision and certainty required
Constitutional Amendments:


In certain matters the US must speak with a single
voice
Need for finality and certainty about status
Guaranty clause:

Clause commits to political branch any question of
enforcement

Claim:

Baker v. Carr
(1962)
Unequal apportionment of Tennessee legisla-ture
violated:
Guaranty Clause of Art. IV, § 4
 Rejected in Colegrove v. Green (1946)
 See also Luther v. Borden (1849)
 Equal Protection Clause of 14th Amendment

Spring, 2006
47
Con Law I - Manheim
Baker v. Carr

Political Questions:

(1962)
Textually demonstrable constitutional commit-ment of
issue to coordinate political department
Baker v. Carr

Political Questions:
(1962)
Textually demonstrable constitutional commit-ment of
issue to coordinate political department
 Lack of judicially discoverable and manageable
standards for resolving the issue





Impossibility of deciding without initial policy
determination clearly for nonjudicial discretion
Lack of respect due coordinate branch of gov’t
Unusual need for unquestioned adherence to a
political decision already made
Potential embarrassment from multifarious
pronouncements by various departments
Powell v. McCormack

Removing a member of congress

(1969)
Exclusion (Art. I, § 2)
“No Person shall be a Representative who shall not have attained to the
Age of 25 Years, and been 7 Years a Citizen of the US, and … an
Inhabitant of that State..”

Expulsion (Art. I, § 5, ¶ 2)
Each House may … punish its Members for disorderly Behaviour, and,
with the Concurrence of two thirds, expel a member.”

Impeachment (Art. II, § 4)
“all civil Officers of the United States shall be removed from Office on
Impeachment [and] Conviction...”
Powell v. McCormack

FACTS


(1969)
Powell was elected to serve in the House of
Representatives for the 90th Congress. However, a
House resolution prevented him from taking his
seat. Powell challenged this resolution.
Claim:

Exclusion from House exceeded grounds specified in
Art. I, § 2:
“No Person shall be a Represen-tative who shall not have attained to
the Age of 25 Years, and been 7 Years a Citizen of the US, and …
an Inhabitant of that State …”
Powell v. McCormack
Defense:

Art. I, § 5 commits exclusion to
discretion of House
“Each House shall be the Judge of the
Elections, Returns and Qualifications of its
own Members”
Held:

Non-justiciable political questions will
not be reviewed by the Court because
the Constitution commits another
branch of government to determine
these issues.
(1969)
Goldwater v. Carter

(1979)
FACTS:
President Carter terminated a treaty with Taiwan, and a
few Congressional members felt that this deprived
them of their Constitutional function.
 However, no Congressional action was ever taken. The
Senate considered a resolution that would require the
President to get Senate approval before any mutual
defense treaty could be terminated, but there was no
final vote on the resolution.

Goldwater v. Carter

Claim:

(1979)
President’s unilateral abrogation of treaty with
Republic of China violated Art. II, § 2, ¶ 2:
“The President … shall have Power, by and with the Advice and Consent
of the Senate to make Treaties, provided two thirds of the Senators present
concur”
Spring, 2006
•
What power has been delegated to the President?
To
the Senate?
•
Are these judicial questions?
•
Do they lack judicially
manageable standards?
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Con Law I - Manheim
Goldwater v. Carter

Foreign Affairs:

Always non-justiciable
political questions?
HELD
Yes. Whether or not a President can
terminate a treaty closely involves his
foreing relations authority and therefore
is not reviewable by the Supreme Court.
(1979)
THE END OF LECTURE #2