Cases and Controversies

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Article III of the Constitution vests the judicial power of the united states in one constitutionally mandated Supreme Court and such subordinate federal courts as Congress may choose to establish. Federal judges are appointed for life with salaries that cannot be diminished, but they may exercise their independent and politically unaccountable power only to resolve "cases" and "controversies" of the kinds designated by Article III, the most important of which are cases arising under the Constitution and other federal law. The scope of the federal judicial power thus depends in large measure on the Supreme Court's interpretations of the "case" and "controversy" limitation applicable to the Court itself and to other Article III tribunals.

That limitation not only inhibits Article III courts from arrogating too much power unto themselves; it also prevents Congress from compelling or authorizing decisions by federal courts in nonjudicial proceedings and precludes Supreme Court review of state court decisions in proceedings that are not considered "cases" or "controversies" under Article III. The limitation thus simultaneously confines federal judges and reinforces their ability to resist nonjudicial tasks pressed on them by others.

The linkage between independence and circumscribed power is a continuously important theme in "case" or "controversy" jurisprudence, as is the connection between "case" or "controversy" jurisprudence and the power of judicial review of government acts for constitutionality—a power that marbury v. madison (1803) justified primarily by the need to apply the Constitution as relevant law to decide a "case." During the constitutional convention of 1787, edmund randolph, proposed that the President and members of the federal judiciary be joined in a council of revision to veto legislative excesses. The presidential veto power was adopted instead, partly to keep the judiciary out of the legislative process and partly to insure that the judges would decide cases independently, without bias in favor of legislation they had helped to formulate. Similar concerns led the convention to reject charles pinckney's proposal to have the Supreme Court provide advisory opinions at the request of Congress or the President. Finally, in response to james madison's doubts about extending the federal judicial power to expound the Constitution too broadly, the Convention made explicit its understanding that the power extended only to "cases of a Judiciary nature." The Framers understood that the judicial power of constitutional governance would expand if the concept of "case" or "controversy" did.

What constitutes an Article III "case," of a "judiciary nature," is hardly self-evident. No definition was articulated when the language was adopted, but only an apparent intent to circumscribe the federal judicial function, and to insure that it be performed independently of the other branches. In this century, Justice felix frankfurter suggested that Article III precluded federal courts from deciding legal questions except in the kinds of proceedings entertained by the English and colonial courts at the time of the Constitution's adoption. But the willingness of English courts to give advisory opinions then—a practice clearly inconsistent with convention history and the Court's steadfast policy since 1793—refutes the suggestion. Moreover, from the outset the separation of powers aspect of the "case" or "controversy" limitation has differentiated constitutional courts (courts constituted under Article III) from others. Most fundamentally, however, the indeterminate historical contours of "cases" or "controversies" inevitably had to accommodate changes in the forms of litigation authorized by Congress, in the legal and social environment that accompanied the nation's industrial growth and the rise of the regulatory and welfare state, and in the place of the federal judiciary in our national life.

After two centuries of elaboration, the essential characteristics of Article III controversies remain imprecise and subject to change. Yet underlying the various manifestations of "case" or "controversy" doctrine are three core requirements: affected parties standing in an adverse relationship to each other, actual or threatened events that provoke a live legal dispute, and the courts' ability to render final and meaningful judgments. These criteria—concerning, respectively, the litigants, the facts, and judicial efficacy—have both independent and interrelated significance.

As to litigants, only parties injured by a defendant's behavior have constitutional standing to sue. collusive suits are barred because the parties' interests are not adverse.

As to extant factual circumstances, advisory opinions are banned. This limitation not only bars direct requests for legal rulings on hypothetical facts but also requires dismissal of unripe or moot cases, because, respectively, they are not yet live, or they once were but have ceased to be by virtue of subsequent events. The parties' future or past adversariness cannot substitute for actual, current adversariness. Disputes that have not yet begun or have already ended are treated as having no more present need for decision than purely hypothetical disputes. (See ripeness; mootness).

The desire to preserve federal judicial power as an independent, effective, and binding force of legal obligation is reflected both in the finality rule, which bars decision if the judgment rendered would be subject to revision by another branch of government, and in the rule denying standing unless a judgment would likely redress the plaintiff's injury. These two rules are the clearest instances of judicial self-limitation to insure that when the federal courts do act, their judgments will be potent. To exercise judicial power ineffectively or as merely a preliminary gesture would risk undermining compliance with court decrees generally or lessening official and public acceptance of the binding nature of judicial decisions, especially unpopular constitutional judgments. Here the link between the limitations on judicial power and that power's independence and effectiveness is at its strongest.

Historically, congressional attempts to expand the use of Article III judicial power have caused the greatest difficulty, largely because the federal courts are charged simultaneously with enforcing valid federal law as an arm of the national government and with restraining unconstitutional behavior of the coequal branches of that government. The enforcement role induces judicial receptivity to extensive congressional use of the federal courts, especially in a time of expansion of both the federal government's functions and the use of litigation to resolve public disputes. The courts' checking function, however, cautions judicial resistance to congressional efforts to enlarge the scope of "cases" or "controversies" for fear of losing the strength, independence, or finality needed to resist unconstitutional action by the political branches.

The early emphasis of "case" or "controversy" jurisprudence was on consolidating the judiciary's independence and effective power. The Supreme Court's refusal in 1793 to give President george washington legal advice on the interpretation of treaties with France—the founding precedent for the ban on advisory opinions—rested largely on the desire to preserve the federal judiciary as a check on Congress and the executive when actual disputes arose. Similarly, hayburn ' scase (1792) established that federal courts would not determine which Revolutionary War veterans were entitled to disability pensions so long as the secretary of war had the final say on their entitlement: Congress could employ the federal judicial power only if the decisions of federal courts had binding effect. In the mid-nineteenth century the concern for maintaining judicial efficacy went beyond finality of substantive judgment to finality of remedy. The Supreme Court refused to accept appeals from the Court of Claims, which Congress had established to hear monetary claims against the United States, because the statutory scheme forbade payment until the Court certified its judgments to the treasury secretary for presentation to Congress, which would then have to appropriate funds. The Court concluded that Congress could not invoke Article III judicial power if the judges lacked independent authority to enforce their judgments as well as render them.

Preserving judicial authority remains an important desideratum in the twentieth century, but the growing pervasiveness of federal law as a means of government regulation—often accompanied by litigant and congressional pressure to increase access to the federal courts—inevitably has accentuated the law-declaring enforcement role of the federal judiciary and tended to expand the "case" or "controversy" realm. muskrat v. united states (1911) cited the courts' inability to execute a judgment as a reason to reject Congress's authorization of a test case to secure a ruling on the constitutionality of specific statutes it had passed. Similarly, the Court initially doubted the federal courts' power to give declaratory judgments. Yet, by the late 1930s, the Supreme Court had upheld both its own power to review state declaratory judgment actions and the federal declaratory judgment act of 1934. The declaratory judgment remedy authorizes federal courts to decide controversies before legal rights are actually violated. The judge normally enters no coercive order, but confines the remedy to a binding declaration of rights. So long as the controversy is a live one, between adverse parties, and the decision to afford a binding remedy rests wholly with the judiciary, the advisory opinion and finality objections pose no obstacles. A controversy brought to court too early may fail Article III ripeness criteria, but the declaratory remedy itself does not preclude the existence of a "case" or "controversy."

Congress has succeeded in expanding the reach of federal judicial power not only by creating new remedies for the federal courts to administer but also by creating new substantive rights for them to enforce. The Supreme Court maintains as a fundamental "case" or "controversy" requirement that a suing party, to have standing, must have suffered some distinctive "injury in fact." The injury must be particularized, not diffuse; citizen or taxpayer frustration with alleged government illegality is insufficient by itself. In theory, Congress cannot dispense with this requirement and authorize suits by individuals who are not injured. Congress may, however, increase the potential for an injury that will satisfy Article III, simply by legislating protection of new rights, the violation of which amounts to a constitutional "injury in fact." For example, Trafficante v. Metropolitan Life Insurance Company (1972) held that a federal civil rights ban on housing discrimination could be enforced not only by persons refused housing but also by current tenants claiming loss of desired interracial associations; the Court interpreted the statute to create a legally protected interest in integrated housing. To a point, then, Article III "cases" or "controversies" expand correspondingly with the need to enforce new federal legislation. Yet the scope of congressional power to transform diffuse harm into cognizable Article III injury remains uncertain and apparently stops short of providing everyone a judicially enforceable generalized right to be free of illegal governmental behavior, without regard to more individualized effects.

The historically approved image is that federal judges decide politically significant public law issues only to resolve controversies taking the form of private litigation. Over the years, however, this picture has had to accommodate not only congressional creation of enforceable rights and remedies but also the modern realities of public forms of litigation such as the class action, the participation of organized public interest lawyers, and lawsuits aimed at reforming government structures and practices. (See institutional litigation.) Public law adjudication, especially constitutional adjudication, is certainly the most important function of the federal courts. The inclination to stretch the boundaries of "cases" or "controversies" to provide desired legal guidance on important social problems, although it has varied among federal judges and courts of different eras, increases in response to congressional authorization and the perception of social need. Offsetting that impulse, however, are two countervailing considerations. First, the judges realize that the more public the issues raised, the more democratically appropriate is a political rather than a judicial resolution. Second, they understand the importance of a litigation context that does not threaten judicial credibility, finality, or independence; that presents a realistic need for decision; and that provides adequate information and legal standards for confident, well-advised decision making. These competing considerations will continue to shape the meaning of "cases" and "controversies," setting the limits of the federal judicial function in ways that preserve the courts' checking and enforcement roles in the face of changes in the forms and objectives of litigation, in the dimensions of federal law, and in the expectations of government officials and members of the public.

Jonathan D. Varat


Brilmayer, Lea 1979 The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement. Harvard Law Review 93:297–321.

Monaghan, Henry P. 1973 Constitutional Adjudication: The Who and When. Yale Law Journal 82:1363–1397.

Radcliffe, James E. 1978 The Case-or-Controversy Provision. University Park: Pennsylvania State University Press.

Tushnet, Mark V. 1980 The Sociology of Article III: A Response to Professor Brilmayer. Harvard Law Review 93: 1698–1733.