Justiciable

JUSTICIABLE

Capable of being decided by a court.

Not all cases brought before courts are accepted for their review. The U.S. Constitution limits the federal courts to hearing nine classes of cases or controversies, and, in the twentieth century, the Supreme Court has added further restrictions. State courts also have rules requiring matters brought before them to be justiciable.

Before agreeing to hear a case, a court first examines its justiciability. This preliminary review does not address the actual merits of the case, but instead applies a number of tests based on judicial doctrines. At their simplest, the tests concern (1) the plaintiff, (2) the adversity between the parties, (3) the substance of the issues in the case, and (4) the timing of the case. For a case to be heard, it must survive this review. In practice, courts have broad power to apply their tests: they commonly emphasize whichever factors they deem important. This irregularity has made the analysis of justiciability a difficult task for lawyers, scholars, and the courts themselves.

Behind the tests for justiciability are a number of legal doctrines. The Supreme Court has declared that the doctrines have both constitutional and prudential components: some parts are required by the Constitution, according to the Court's interpretation of Article III, and some are based on what the Court considers prudent judicial administration. This distinction has important consequences for the limits of judicial power. Congress has the authority to pass laws that override only the prudential limits of judicial review; it cannot pass laws that override constitutional limits. Thus, the Supreme Court has insulated the federal courts from congressional influence in some but not all areas of justiciability.

Among the most complex justiciability doctrines is standing, which covers the plaintiff. Standing focuses on the party, not on the issues he wishes to have adjudicated (Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947). A claimant said to have standing has been found by the court to have the right to a trial. To reach such a determination, the court uses several general rules. These rules require that the claimant has suffered an actual or threatened injury; that the case alleges a sufficient connection (or nexus) between the injury and the defendant's action; that the injury can be redressed by a favorable decision; and that the plaintiff neither brings a generalized grievance nor represents a third party. In addition, separate rules govern taxpayers, organizations, legislators, and government entities.

The question of justiciability also involves the legal relationship of the parties in the case, as well as the substance of their dispute. To be found justiciable, the case must involve parties who have an adversary controversy between them. Moreover, the issues in the controversy must be "real and substantial," and therefore more than mere generalized interests common to the public at large. A related rule forbids the federal courts to issue advisory opinions. Dating from the late eighteenth century, it holds that they must decline to rule on merely hypothetical or abstract questions. In addition, they are restricted from taking cases that address purely political questions, which are beyond management by the judiciary. Certain state courts do issue advisory opinions on legal questions.

The fourth concern of tests for justiciability, the timing of the case, is evaluated under the concepts of ripeness and mootness. The ripeness doctrine holds that a case is justiciable if "the harm asserted has matured sufficiently to warrant judicial intervention" (Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 [1975]). The mootness doctrine prevents a court from addressing issues that are hypothetical or dead. A case may become moot because of a change in law or in the status of the litigants. Most commonly, it is held to be moot because the court is presented with a fact or event that renders the alleged wrong no longer existent. For example, in 1952 the Supreme Court refused to review a state court decision in a case challenging Bible reading in the public schools. The child behind the suit had already graduated, and the parents and taxpayers who brought the suit could show no financial injury (Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475). However, the Court did agree to hear the landmark abortion case roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), even though the plaintiff was no longer pregnant. The Court gave as its reason the length of a woman's gestation period (nine months), which is too short to permit appellate review.

One reason justiciability is complex is that it is replete with numerous arcane rules and exceptions. Another is that courts apply it on an ad hoc basis, inconsistently choosing to emphasize one element of its tests over another. This fact has led legal scholars to despair of ever reaching a unified analysis of justiciability. Some have taken the cynical view that courts will find a case justiciable when they want to hear it, and refuse to find it justiciable when they do not wish to hear it.

further readings

Chemerinsky, Erwin. 2001. "Bush v. Gore Was Not Justiciable." Notre Dame Law Review 76 (June).

——. 1990. "A Unified Approach to Justiciability." Connecticut Law Review 22 (summer).

Galloway, Russell, W., Jr. 1990. "Basic Justiciability Analysis." Santa Clara Law Review (winter).

Tsen Lee, Evan. 1992. "Deconstitutionalizing Justiciability: The Example of Mootness." Harvard Law Review 105 (January).