Constitutional Law I
Justiciability – Part I
Sept. 8, 2004
Types of Limits on Judicial Power
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
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Types of Limits on Judicial Power
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
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Article III
Section 2: "The judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States …
to Controversies to which the United States
shall be a Party …"
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Article III
Section 2: "The judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States …
to Controversies to which the United States
shall be a Party …"
The power to apply the
law to legal disputes
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Article III
Section 2: "The judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States …
to Controversies to which the United States
shall be a Party …"
legal dispute between
litigants based on facts
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Article III
Section 2: "The judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States …
to Controversies to which the United States
shall be a Party …"
Synonym for "cases"
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Case or Controversy requirement
Legal dispute between litigants based on
actualMarshall:
facts “Questions, in their nature




or which
are, by the Constitution
Nopolitical,
advisory
opinions
laws, submitted
to the executive,
Noand
conjectural,
premature
or stale can
cases
never be made in this Court."
Only litigants with real & personal disputes
of adversarial character
No political disputes (i.e., matters not suited
for adjudication in court of law)
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Prudential rules (self-restraint)
Exercise power of judicial review only as
last resort

Decide constitutional questions last
 Decide state issues 1st
 Decide federal statutory issues 2nd




Construe statutes as to render them const'l
Decide cases on narrowest grounds
Plaintiff must assert personal right
Court must be able to issue meaningful relief
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Advisory Opinions
Marshall's syllogism for judicial review



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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
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Opinion of the Justices
Interpretation of peace treaty



Why did Washington/Jefferson want a judicial
interpretation?
Why didn't Jay want to provide it?
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 …"
Contrast state Supreme Courts
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Judicial Finality
Heyburn's Case (1792)

Federal Courts cannot make mere
"recommendations" to other branches
Res Judicata

Full effect to decided cases
 Even if wrongly decided?
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Plaut v. Spendthrift Farms
(1995)
Statute of limitations - Rule 10(b)(5) cases
S.Ct. interpretation of federal statute?


Does S.Ct. ever misinterpret a federal law?
What recourse does Congress have?
Change in underlying substantive law


Applicability for future cases
Applicability for case already decided
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Plaut v. Spendthrift Farms
(1995)
Change in underlying substantive law

Applicability for pending cases
Distinction between types of relief sought

Retroactive relief (e.g., Klein v. U.S.)
 When plaintiff seeks a remedy for past harms (e.g.,
damages, restitution), the law applied is that which
existed when cause of action accrued

Prospective relief (e.g., Robertson v. Audubon Soc.)
 When plaintiff demands that defendant comply with
the law, to prevent ongoing or future harm, the law
applied is the law that exists when judgment is
entered
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UnderStanding Standing
Article III courts have limited jurisdiction

SoP and Federalism reasons
Subject matter limits

9 heads of SMJ in Art. III, §2, ¶ 1
Case & Controversy (types of disputes)

These are the justiciability doctrines
 Standing
 Ripeness
 Mootness
 Political Question
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Const. limits & rules of prudential self-restraint
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Standing
Theory

Federal courts can exercies judicial power only
in cases and controversies of an "adversarial
nature"
 To be adversarial, litigants must be in particular
relationship with one another such that they have
personal stake in outcome of case

Judicial power is the power to decide cases. If
a federal court is unable to give effective relief,
then it is not deciding a case, but merely
rendering an advisory opinion.
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Standing Elements
1.
2.
3.
4.
Discrete and Palpable Injury
Caused by Defendant's (alleged) Action
Remediable by Court
Plaintiff's personal rights at stake
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Allen v. Wright (1984)
Players
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W. Wayne Allen, Chairman, Bd of Trustees,
Briarcrest Baptist School, Memphis, TN
Donald T. Regan, Secretary of Treasury
Inez Wright, mother of black pupils
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Background
“White flight” from public to private schools
“Briarcrest Baptist High School, which opened two years ago
after the courts ordered busing in the Memphis schools, has
just about everything: a lavish $6.5 million building with
earphones dangling from the ceiling in language labs, en
electric kiln for would-be potters and an enthusiastic and
well-educated corps of teachers …
“Many of the new private schools, like Briarcrest, insist that
they have "open" admissions and are segregated only
because no blacks have applied. But they conceded that
white hostility to desegregation accounts for much of their
growth. "We've got parents who are running from
problems," says Wayne Allen, a Baptist minister who is
chairman of the Briarcrest board of trustees. "Anyone who
says different is not telling the truth."
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Background
“White flight” from public to private schools
“The rise of private schools also poses a serious threat to
public education in the South. By skimming off the children
of many middle-class whites, the segregated academies are
helping to turn public schools into "pauper systems", with
student bodies that are increasingly black and poor ...
“As one 17-year-old student at Briarcrest put it, "I left the
public schools to get away from blacks. If they came here, I
don't think they would be welcome at all."
Time Magazine, Dec. 15, 1975
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Background
Private schools are expensive


Less so (perhaps) if they have
alternative sources of income
Easier to raise funds (perhaps) if
contributions are tax deductible
IRS required by statute to deny tax exempt
status [501(c)(3)] to racially discriminatory
private schools
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But (alleged) IRS failed to follow standards set
by S.Ct. in Bob Jones University v. U.S. (1983)
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Allegations
Tax-exempt status constitutes federal
financial aid in violation of statute
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NB: probably not a constitutional violation
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Standing Elements
1.
2.
3.
4.
Discrete and Palpable Injury
Caused by Defendant's (alleged) Action
Remediably by Court
Plaintiff's personal rights at stake
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Standing Elements
1.
2.
3.
4.
Discrete and Palpable Injury Irreducible
minimums
Caused by Defendant's (alleged)
Action of
Article III
Remediable by Court
Plaintiff's personal rights at stake
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1. Discrete and Palpable Injury
Discrete (or distinct):


“constituting a separate
entity : individually
distinct”
Not generalized
Palpable:



Claimed injuries
1. Harmed by gov’t aid
to discrim. schools
a. Right to have gov’t
obey the law
b. Stigmatic injury
(contrast personal
discrimination)
“easily perceptible”
2. Harmed by denial of
Not abstract or conjectural
integrated education
Must be “judicially
“One of the most serious injuries
cognizable”
recognized in our legal system”
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"Judicially Cognizable" injuries
Hohfeldian injuries

Injury to person or property
Non-Hohfeldian injuries

Injury to positive rights
 Constitutional rights (e.g., Wright)
 Most stautory rights (e.g., FEC v. Atkins (1998))

Other personal interests
 No, unless recognized by law (e.g., common
law)
Abstract (philosophical) injuries

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Not usually
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2. Causation
Plaintiff’s injury must have been caused by
defendant’s (allegedly) illegal conduct

“fairly traceable”
 Elsewise, not a “controversy” between these parties
IRS wrongly confers
tax-exempt status
White flight, which deprives
Pl’s of integrated education
Line of causation
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2. Proving Causation
Does tax-exempt status cause segregated
public schools?


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Is it tantamount to a “subsidy for the
withdrawal of a white child”? [Stevens]
Even if it is, how does it cause segregation?
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3. Redressability
Court must be able to fashion a remedy
that will alleviate plaintiff’s injury


Often the flip side of causation inquiry
Sometimes due to nature of requested relief
 Example: Linda R.S. v. Richard D. (1973)

Jailing father for non-support doesn't get mother more $$
 Example: Warth v. Seldin (1975)

Invalidating exclusionary housing ord. does not necessarily
result in more affordable housing
Inability to alleviate the injury is tantamount to rendering an "advisory opinion"
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2. Proving Causation
Do uncertainties about the
Does tax-exempt actions
status
cause
segregated
of third parties break
public schools?
the chain of causation?
Would denying exempt status result in
better-integrated public schools?




Raise tuition at discriminatory private schools or
cause them to change their policies?
Result in some white students not enrolling?
Would they attend local public schools instead?
Would that be sufficient “integration”?
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2. Proving Causation
Is Causation element result oriented?

Simon v. Eastern Kentucky Welfare Rights Org
 Would losing tax-exempt status induce hospitals to
provide free medical care to indigent patients?

Duke Power v. Carolina Env. Study Group
 Would removing cap on liability induce power cos to
close nuclear power plants?
How do you “prove” this line of causation?
When should you have to prove it?
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2. Proving Causation
When?


Justiciability is a prerequisite to jurisdiction
Must be satisfied at all stages of litigation
Who?

Party invoking fed. jdx. has burden of proof
How?


Pleading stage: factual allegations sufficient
Pre-trial stage: specific facts / triable evidence
 Should the std. of proof be greater if facts supporting
causation are in plaintiff’s control (vs. 3rd party)?

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Trial: proof by preponderance of evidence
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2. Proving Causation
Also an element of most causes of action

Proof needed to prevail on claim
Also an element for injunctive relief

Pl. must establish both ongoing or imminent
injury resulting from Def’s continued action
Courts often confuse standing causation
with claim or relief causation
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4. Personal rights at stake
The right being enforced must belong to
plaintiff



Here, the right is a statutory one: no taxexempt status for discriminatory private
schools
Is Inez Wright the intended beneficiary of this
right?
Did Congress intend for her to enforce it?
Perhaps this is what J. O’Connor means by
standing (in this case) raising SoP concerns
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