Judicial Powers

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Article III places the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 extends federal judicial power to “cases and controversies” arising out of several areas. Central to our concern here is that the federal courts are given jurisdiction over Constitutional issues and issues arising from federal law. Other sources of jurisdiction provided the federal courts by Article III, such as diversity jurisdiction, are best addressed elsewhere.

You will recall from Subchapter 1 that the Supreme Court grants certiorari in fewer than 5% of the cases in which it is sought. These cases have come up through the federal court system, starting with the District Courts, which are the federal courts of original jurisdiction. There might be several separate District Courts sitting within the geographic boundaries of a state, but these are not tied to the state court system.

The intermediate appeals courts in the federal system are called Circuit Courts, which generally cover the District Court appeals from several neighboring states. The court of final appeals, of course, is the Supreme Court.

One of the most important roles of the federal courts is to adjudicate the Constitutionality of Congressional acts. It was the historic case of Marbury v. Madison, 5 U.S. 137 (1803) which established that the Supreme Court has the power to declare unconstitutional any act of Congress which conflicts with the Constitution. Essentially, the reasoning was that because the Constitution is the highest law of the land, any law conflicting with the Constitution necessarily must be struck down. The real source of controversy was not the Constitution’s supremacy, but the claimed right of the judiciary, rather than the legislature, to determine whether a law was in conflict with the Constitution. However strong the battle once was, it has now been long accepted that the federal courts have the power to strike down acts of Congress which the court finds unconstitutional.

EXAMPLE: Congress, in a remarkable turn of events, decides that the nation’s economic difficulties are largely due to the number of women who are employed at full-time positions, thus not properly raising their children who grow up without any sense of responsibility and eventually become poor employees. They therefore pass a statute requiring a freeze on the hiring of all women until such time as Congress otherwise mandates. It is the duty of the federal courts to strike down this act as unconstitutional and refuse to enforce it.

Reviewing the Constitutionality of an act of Congress is something a federal court can do as a court of original jurisdiction. But the Supreme Court plays another vital role; solely as an appellate court. The Supreme Court may grant certiorari to hear an appeal from the decision of the highest court of any state insofar as the state court applied federal law in arriving at its conclusion. If, however, the decision could be independently and adequately grounded in state law, the Supreme Court has no jurisdiction to hear the case. In other words, if the Supreme Court’s decision regarding the application of federal law by the state court would not change the outcome of the case, there is no reason for the Supreme Court to grant certiorari.

EXAMPLE: Mississippi has a law which prohibits “use of race in employment decisions.” Roger Daltry auditions for a job as a singer at a blues club in Mississippi and believes he wasn't given the job because he is white. He cites the Mississippi law and federal anti-discrimination statutes in his cause of action. The Mississippi Supreme Court finds in Roger’s favor, citing both Mississippi law and federal law as independently requiring that outcome. Assuming the court misapplied the federal statute, the Supreme Court will still not hear the case, as overturning the court’s decision regarding the federal statute will still leave the Mississippi state law as grounds for the court’s conclusion.

Before any federal court will exercise jurisdiction over any case, the "case" or "controversy" requirement of Article III must be met. Whether there is a real case or controversy over which the court has jurisdiction depends on four factors:

1. Standing: The Plaintiff must have standing to sue. This means that she must allege and prove either past injury or imminent injury, which has been personally suffered (no suit is available for someone else’s injury, with some limited exceptions), which was caused by Defendant, and which is redressable. If the Plaintiff cannot make out all of these elements, Plaintiff does not have standing and the suit will not be heard. For example:

Frank is angry about what happened to his friend Joanie last month when Joanie was applying for a job as a truck driver. Upon walking into the office for her interview, Joanie was told “Sorry, we don’t hire no gals to drive dese here trucks. You just couldn’t handle it.” Frank files a discrimination suit on Joanie’s behalf. Even if Joanie is Frank’s tenant and by virtue of the discrimination she cannot pay her rent, Frank has suffered no harm which can be redressed by the Court and lacks standing.

2. Ripeness: The court must have before it everything necessary to make a decision. Otherwise the case is not ripe and will not be heard. For example, one cannot bring a constitutional claim regarding a recently passed law before the law is enforced and some damage is actually suffered (except if one shows extreme hardship in the absence of a pre-enforcement judgment). For example:

Beth drives a very large S.U.V. While looking for a parking spot in town she notices a sign which says “Compact Vehicles Only, All Others Will Be Towed.” She pulls into the spot, which is coincidentally right in front of the courthouse. She enters the courthouse and files a lawsuit against the town. Until and unless she is actually towed, her case is not ripe. After all, if the town ordinance regarding parking is simply never enforced, there will never be any case or controversy requiring adjudication.

3. Mootness: The case or controversy requirement means the Plaintiff must bring a “live” controversy, not an issue which has already been resolved or invalidated in some other way. For example, if I sue Charlie to get him to pay for the car he bought, and prior to our court date he makes the payment, the case will be dismissed as moot. There are, however, three important exceptions to this rule.

• First, class action suits will not be dismissed as moot.
• Second, if a Defendant voluntarily ceases the activity which gave rise to the cause of action simply in order to evade adjudication and is likely to recommence the activity if the case is dismissed as moot, the court may still hear the case. So if my neighbor holds raves every night which interfere with my quiet enjoyment of my land, and every time I sue he stops until the case is dismissed then begins again, a court need not dismiss for mootness.
• Third, certain issues capable of repetition evade review because the time-span during which they can be challenged causes the issue to be moot by the time the case comes before the court. Here, too, a court need not dismiss for mootness. So if a law prohibiting abortions is challenged by someone seeking an abortion, the fact that the case might take over a year to go to trial will not require a court to dismiss it as moot.

For example:

In January of each year my car gets plowed-in by town vehicles clearing the road. This year I filed a claim against the town the day after my car was once again plowed in. In the four months it took to get the case before a judge, the snow all melted and my car was freed. Although the case is moot, this is an issue which would entirely escape judicial review due to the time it takes to get a case to court unless it is heard despite the natural spring thaw.

4. The Political Question Doctrine: Courts do not have jurisdiction over political questions, and if the only issue raised by a Plaintiff is political, the case will not be heard. Most important for our purposes is to understand that this includes challenges to Presidential decisions on foreign policy.

Judicial Activism

In most cases today there is no great controversy over granting jurisdiction to federal courts. Nevertheless, there remains a great deal of controversy over the role which those courts should play. This controversy often centers around the Supreme Court, simply because a Supreme Court decision has the greatest potential for serious impact on a grand scale. Simplifying the debate into two schools of thought will make our task a bit less onerous here. Bear in mind, however, that many shades of subtlety lie between (and outside) the two opposing positions described below.

The sharp contrast in this debate is between those who call for judicial activism and those who demand judicial restraint.

Judicial activists hold that judges must do more than simply uphold the precedents before them. Rather, judges must consider social policies and changes in arriving at their decisions, even when this would have the effect of contradicting precedent. Before retiring from the Supreme Court in 1990, Justice Brennan, in The Contemporary Constitution, Kettering Review (Fall 1987), 6-11, wrote

“the act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought….[T]he ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning…but in the adaptability of its great principles to cope with current problems and current needs.”

Judicial activists see no harm in applying law in new ways to suit current situations. Indeed, judicial activists see this as an important responsibility bestowed on the courts.

Those who argue for judicial restraint, however, are generally of the belief that laws should be made by the legislature, and that judges are, in effect, creating new laws when they follow the sort of reasoning employed by Justice Brennan. Judicial activism, the argument goes, turns courts into law-makers, something they were never intended to be.

In The Federalist Papers, Alexander Hamilton argued that a strong and independent judiciary is best because the judiciary, of the three branches of the federal government, is the least dangerous to the Constitution since it can only judge and not actively create law. Those advocating judicial restraint would say that when a strong judiciary oversteps its bounds it is a great threat indeed to the Constitution. Of course, those advocating judicial activism would say that no matter how active the courts may be, the legislature may still pass and repeal laws in accordance with the Constitution. Hence, any possible damage caused by over-active judges is inherently limited by Congress’ ability to immediately remedy to the situation with a new law.

To see how the debate plays out in an actual case, let’s look at Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and Buxton, a physician, “gave information, instructions and medical advice to married persons as to the means of preventing conception” in violation of state law. Griswold and Buxton sued claiming that the statute violated the Fourth Amendment. The Court found that the Fourth Amendment creates a “zone of privacy created by several fundamental constitutional guarantees.” Of course, the Fourth Amendment contains no such language, but the Court extrapolated the “zone of privacy” pointing to the First, Third, Fifth, and Ninth Amendments. In finding that there was a Constitutional right of privacy which was violated by the Connecticut law, the Court arguably expanded the rights provided in the Fourth Amendment. The task of courts, according to the theory of judicial restraint, would not have led to this decision. Thus, the decision led to strong criticisms of the majority opinion. Judicial activists, however, would argue that no rights were actually expanded, but that the rights already granted in the Constitution were simply being spelled out to apply to a situation which hadn't come up previously.

The debate over judicial activism raged on through Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). But the debate is not limited to Supreme Court decisions regarding contraception or abortion. Whenever a judge is asked to apply law in a way not strictly in accordance with precedent, there is the potential for debate over judicial activism versus judicial restraint.

Obviously, how far a court may go when interpreting law could not have been precisely spelled out in the Constitution, and the debate is not likely to be settled here. For those interested, articles and longer works by H.L.A. Hart, John Rawls, and Ronald Dworkin, among others, will provide further insight into the issue, as will various articles contained in Understanding Law In A Changing Society, 2d ed., Altschuler & Sgroi, Prentice Hall, N.J. (1996).

What is clear is that the judicial branch of our federal government plays a highly prominent role in the study of Constitutional Law. For better or worse, the Supreme Court occasionally strikes down acts of Congress and state laws on Constitutional grounds, and it is through these decisions that the scope of the Constitution is often understood. Supreme Court decisions define Constitutional rights and give shape to them. The debate over the role of the judiciary, therefore, is something you may want to bear in mind as we proceed through the ensuing chapters.

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