Case or Controversy

Imagine you are a judge in your local court. You receive a letter from a local legislator asking you for your opinion on whether a law increasing funds for certain schools will be constitutional. Do you answer? Is that part of your job as a judge? (See advisory opinions below). Now a citizen who lives on the east side of the city comes in with a lawsuit against the city. He claims that a new zoning law will ruin the west side of the city and should be overturned. Should you let him proceed with the lawsuit, even though he will not be directly harmed? (See Standing below). Suppose the City passes an ordinance increasing the number of liquor licenses available downtown. Will you hear a case brought by citizens against that ordinance, even thought nobody has asked for another license. (See ripeness below).

These concepts take on great significance in the context of the Supreme Court, because they tell us something about the limits of the Court's power to interfere with the democratic process. Can the Supreme Court send a letter to Congress warning Congress not to pass a law that seems to be unconstitutional? Can the Supreme Court declare a law unconstitutional after the President signs that law, but before it is enforced against a particular citizen. Who can cause the Supreme Court to act? Can the President, a Congressman, an ordinary citizen who dislikes the law, any taxpayer or property owner, or an organization of citizens specially interested in the law.

The answer begins with the statement in the constitution that the judicial power extends to "Cases" and "Controversies." How is this helpful. If a party brings a suit against the government or private party alleging that a law is unconstitutional, then isn't that a case and a controversy. Over the years, the Court has developed rules to make sure that it has real cases, ready for decision. In part, the Court is following what might be called the "Rule of Sloth," don't do work, unless you absolutely have to. But laziness is the least of the Court's concerns. When the Court declares a law unconstitutional, it is interfering with the will of the people, as determined by their elected representatives. Too many such decisions may make the Court unpopular and interfere with its legitimacy. For example, during the great depression, the Court actively interfered with the Roosevelt Administration's efforts to pass legislation to combat poverty, to resolve labor strife, and to control the economy. Out of frustration, Roosevelt began to look for methods of undermining the Court's authority, and ultimately proposed to add more Justices to the Court. The "Court Packing" controversy sent a message to the Court which probably resulted in less judicial interference.

Here are some of the rules which the Court follows to limit its agenda to necessary cases and controversies.

Advisory Opinions

In 1793, President Washington sent a letter to the Court asking the Justices to answer a list of questions relating to international law. Chief Justice Jay declined to answer on the grounds that the Court's power extended only to cases and controversies. By deciding actual cases, involving real facts, the Court benefits from a sense of reality: how does the law actually impact upon real people in real controversies. Otherwise, parties might approach the Court with imagined horror stories, invented notions of the ways in which a law might hypothetically violate constitutional rights. The Court wants to hear from real people whose real rights are really threatened. This likewise assures that the parties before the Court are fairly representing opposite sides of the issue. The Court wants to hear from parties who are actually presenting the best arguments possible on either side. Courts decide cases under the adversary system, under the theory that better decisions result from aggressive adverse parties.

Feigned Collusive or Staged Litigations

For this reason, the Court will reject cases which it believes may actually be staged solely to get a matter before the Court. A staged litigation is a back door method of obtaining an advisory opinion.

Ripeness

The Court ordinarily postpones constitutional controversies until a decision is compelled. Suppose, for example, that a law imposes an unconstitutional tax. The Court likely will not entertain a suit to declare the tax unconstitutional until the tax collector actually attempts to collect the tax, and until it is shown that the amount of the tax will be different if declared unconstitutional. Before there is an actual injury, the case is not ripe. The legislature might yet repeal the law. The individual taxpayer might actually not owe any tax. By taking the case too soon, the Court might intervene in an unnecessary controversy.

What actually does a party need to show that a case is "ripe" for judicial review. In Laird v. Tatum, (1972) a group of citizens brought a class action to challenge the unlawful gathering of military intelligence within the United States targeted against civilians who sought to protest the war in Vietnam. They alleged that American civilians may not properly be the target of military intelligence. The Plaintiffs claimed that as opponents to the war they might be the subject of such intelligence, and that in the future this information might be misused by the government. Some twenty years before, a number of Americans had lost their livelihoods as the result of "mccarthyism," the unbridled investigation of private citizens for their political views. The plaintiffs suggested that the activities now conducted by the military might lead to similar adverse consequences.

Nonetheless, the Court found that the case was not ready for decision:

• "to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action."

In Poe v. Ullman, (1961) the Court refused to hear a challenge to Connecticut anti-birth control laws, because the plaintiffs were not threatened with prosecution. The plaintiffs could cite only a single prosecution in 1940. Later, in Griswold v. Connecticut, (1965), the Court struck down Connecticut laws on the suit of Planned Parenthood which claimed that the laws violated a variety of constitutional protections. Why now did the law present a case or controversy?

This area of ripeness for review is complicated. It may involve whether a law is "self-executing", as where the existence of the law itself imposes a significant burden, as opposed to a law which impacts only when someone decides to prosecute. Sometimes the cases seem decided on a case-by-case basis. For example, in Adler v. Board of Education, (1952), the Supreme Court struck down a statute which prohibited teachers from engaging in "subversive" activities, based upon a suit brought by teachers who asserted that they had not engaged in any of those activities.

Mootness

On the other end of the spectrum are cases which once represented a truly ripe case and controversy, but during the litigation something happens to extinguish the controversy. A student who challenges educational disciplinary practices graduates, for example, can no longer be harmed by those practices. The Court may dismiss such a case as moot, not currently presenting a live case and controversy. Suppose, however, the amount of time necessary to obtain court review must inevitably exceed the life of the controversy. An abortion controversy might otherwise always become moot, because the controversy becomes moot one way or another in several months time. Sometimes the Court accepts a case otherwise moot, because it is capable of repetition, but would otherwise evade review.

Standing

The Court wants the plaintiff to have a real personal interest in the case or controversy. What injury must the plaintiff show, in order to have "standing" to sue? Must the interest be an economic loss; can a taxpayer sue to challenge possible loss to the public treasury; may a Congressman sue to stop enforcement of an unconstitutional law; may an organization challenge a law that interferes with the goals of the organization; may an organization sue on behalf of its members, some of whom are injured by the law. May a company sue the government because a law confers an unfair advantage on its competitors. These are the kinds of issues raised under the concept of "standing."

We will have more to say about standing in the following panel.