Test Cases

Test Cases A test case has usually been thought of as one in which an individual, but more likely an interest group, initiates a case in order to challenge the constitutionality, or perhaps a particular disliked interpretation, of a statute. There are other situations that, although somewhat different from this traditional sense of “test case,” can also be loosely called “test cases.” Some people challenge laws, not necessarily with the thought of “going to the Supreme Court,” but simply because the laws are thought improper, but their cases end up in the Supreme Court; examples are provided by civil rights demonstrators who sat in at restaurants in the South in the 1950s and 1960s. Their convictions on a variety of misdemeanor charges provided convenient opportunities for the federal courts to speak out against racial discrimination. Others might specifically provoke arrest under a statute, with the intention that the case reach the high court, as occurred after Congress in 1989 passed a statute against flag burning. In still other situations, when individuals run afoul of a law they did not specifically seek to break, a lawyer taking their case may challenge the statute's validity rather than try to avoid a conviction.

The examples just noted are relatively recent civil liberties or civil rights situations. Instances of test cases are also found in economic regulation: many challenges to New Deal regulatory legislation were intentionally brought by businesses, their trade associations, or conservative interest groups like the Liberty Lobby. Test cases can be found much earlier as well. One example is the famous “separate but equal” case, Plessy v. Ferguson (1896), which resulted from a concerted effort by some lawyers, joined by railroads, to invalidate Jim Crow statutes; another was an effort by conservatives to challenge the federal income tax through action masked in a collusive suit, Pollock v. Farmers' Loan and Trust Company (1895).

Interest groups engaging in litigation are now more likely to undertake immediate focused challenges to objectionable laws almost before the ink is dry, rather than waiting for individual cases to arise when the laws are implemented and someone is adversely affected by them.

There are several reasons for frequent contemporary use of test cases. The Supreme Court has broadened access to the courts by those seeking to challenge laws. Judges are also more willing to entertain actions for declaratory judgments, that is, declarations of a party's rights before the person is charged with violation of a law; to entertain attacks on a statute “on its face,” that is, on the statute as written, not as applied; to issue injunctions against enforcement of a law; and to grant summary judgments, that is, to rule on the basis of affidavits rather than waiting until extensive testimony has been taken about contested facts. As a result, few new controversial statutes last long before being tested.

Test cases serve to move political issues quickly into a legal setting and to accelerate their arrival at the Supreme Court. Because the Supreme Court is a major political actor likely to confront any major current controversy in due course, test cases are to be expected and are consonant with this view of the Court's role. However, some test cases leave the justices without the benefit of seeing how a statute is applied and, however it may appear “on its face,” whether it might have been applied in a constitutional manner. To the extent our adversary legal system is associated with cases heavily anchored in particular facts, the greater use of facial statutory challenges is a departure from that tradition. The Court itself could make it harder to bring test cases lacking a thorough factual development. One way would be to alter rulings on procedure, as the Burger Court did by tightening rules on access to the courts, for example, limiting who had standing to challenge zoning rules (Warth v. Selden, 1975). Another would be simply not to grant review in cases where a thorough factual record had not been developed.

Stephen L. Wasby