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Federal judges do not establish legal norms at will or on demand, but only when deciding cases that are justiciable, that is, appropriate for federal court decision. What makes a case justiciable is thus itself an important threshold question, because it determines whether a federal court will exercise its power to formulate and apply substantive law, rather than leaving the issues in the case to be resolved by political or other means. Hence, when the Supreme Court fashions the criteria of justiciability for itself and the lower federal courts, it effectively defines the nature and scope of the judicial power of the United States—the power to make decisions in accordance with law.

Most justiciability issues arise when litigants who are primarily motivated to vindicate public rights seek to contest the validity of government behavior, especially on constitutional grounds. Such public interest suits are usually designed not so much to redress traditional personal grievances as to vindicate fundamental principles. Commonly the plaintiffs seek declaratory judgments or injunctions to prevent government officials from carrying on objectionable practices that affect a wide segment of the population. These actions often test and illustrate the degree to which federal judges, particularly Supreme Court Justices, view their power of constitutional oversight as warranted only by the necessity to resolve traditional legal disputes or, instead, by a broader judicial mission to ensure government observance of the Constitution.

In demarcating the federal judicial function, the law of justiciability comprises a complex of subtle doctrines, including mootness, advisory opinions, and political questions, among others. The Supreme Court has derived that law from two sources: Article III, which limits federal judicial power to the decision of cases and controversies, and nonconstitutional "prudential" rules of the Court's own creation. Both Article III and the rules of prudence incorporate notions of the attributes or qualities of litigation that make the legal issues presented appropriate for judicial determination. The difference between the two is that if Congress wants to have the federal courts entertain public actions, it may override the Court's prudential barriers, but not the constitutional limits of "case" and "controversy."

Three primary, and often mutually reinforcing, conceptions of appropriateness shape the many manifestations of justiciability. One concerns judicial capability. It centers on making federal court adjudication competent, informed, necessary, and efficacious. In this conception, a judicial decision is proper only when adversely affected parties litigate live issues of current personal consequence in a lawsuit whose format assures adversary argument and judicial capacity to devise meaningful remedies. The second conception of appropriateness concerns fairness. It promotes judicial solicitude for parties and interests not represented in the lawsuit, whose rights might be compromised unfairly by a substantive decision rendered without their participation. The third conception concerns the proper institutional and political role in our democracy of the appointed, electorally unaccountable federal judiciary. It cautions federal courts to be sure of the need for imposing restraints, especially constitutional restraints, on other, particularly more representative, government officials.

Whether the policies underlying justiciability doctrine are (or should be) applied in a principled, consistent fashion, depending on the form and characteristics of litigation alone, as the Supreme Court professes, or whether the Court does (or should) manipulate them for pragmatic reasons, is a subject of major controversy among the Court's commentators. Inevitably, the Court has discretion to adjust the degree to which these imprecise and flexible policies must be satisfied in particular cases, given individual variations in the configuration of lawsuits and the inherently relative nature of judgments about judicial capability, litigant need, and the propriety of judicial activism and restraint. Assessments of the information and circumstances needed for intelligent, effective adjudication will vary with the levels of generality at which issues are posed and with judicial willingness to act under conditions of uncertainty. Appraisals frequently diverge concerning hardship to, and representation of, present and absent parties who will be affected by rendering or withholding decision. Perhaps most dramatically, Justices differ in their evaluations of the relative importance of judicial control of government behavior and the freedom of politically accountable officials to formulate policy without judicial interference.

In view of the latitude and variation in the Court's self-conscious definition of federal judicial power, it is not surprising that justiciability is a sophisticated, controversial, and difficult field, or that many decisions provoke the skepticism that justiciability doctrine has been manipulated to avoid decision of some issues and advance the decision of others. The Court certainly considers (and is willing to articulate) the degree of concrete focus and clarity with which issues are presented, and how pressing is the need for judicial protection of the litigants. The Court may also consider (but almost certainly will not articulate) a number of the following factors: how substantial, difficult, and controversial the issues are; whether a decision would likely legitimate government action or hold it unconstitutional; how important the Court believes the principle it would announce is and whether the principle could be expected to command public and government acceptance; the possibility of nonjudicial resolution; whether a decision would contribute to or cut off public debate; the expected general public reaction to a decision; the Justices' own constitutional priorities; and a host of other practical considerations that may implicate the Court's capacity to establish and enforce important constitutional principles.

Such judgments appear to have influenced a number of notable justiciability rulings in diverse ways. For example, in Poe v. Ullman (1961) the Court held a declaratory judgment challenge to Connecticut's contraception ban nonjusticiable because the statute was not being enforced, but later held the ban unconstitutional in the context of a criminal prosecution. By contrast, in a declaratory judgment challenge to an unenforced prohibition on teaching evolution, the Court, in epperson v. arkansas (1968), held the case justiciable and the prohibition unconstitutional without awaiting a prosecution. Similarly, the Court twice dismissed a seemingly justiciable appeal challenging Virginia's ban on miscegenation, as applied to an annulment proceeding, within a few years of declaring public school segregation unconstitutional in 1954, but in 1967, following the civil rights advances of the early 1960s, held the law unconstitutional on appeal of a criminal conviction. Moreover, although the Court has deferred decision in some cases where it ultimately held state statutes unconstitutional, it also occasionally appears to have lowered justiciability barriers and rushed to uphold the constitutionality of important federal legislation (the Tennessee Valley Authority and nuclear liability limitation statutes) or to invalidate it when Congress wanted constitutional assistance with ongoing legislative reform (the federal election campaign act.)

Perhaps the Court is inclined to insist on a greater showing of justiciability where it expects to hold governmental action unconstitutional than where it expects to uphold the action, in part because of a substantive presumption of the constitutionality of government conduct. Yet any generalization about the relations between justiciability and the Court's substantive views is hazardous, given the many factors and subtle judgments that may be weighed in any given case. What seems certain is that decisions on questions of justiciability will always be influenced by visions of the judicial role and will be difficult to comprehend without understanding those visions.

Johnathon D. Varat


Bickel, Alexander M. 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Chap. 4. Indianapolis: Bobbs-Merrill.

Gunther, Gerald 1964 The Subtle Vices of the "Passive Virtues": A Comment on Principle and Expediency in Judicial Review. Columbia Law Review 64:1–25.

Varat, Johnathon D. 1980 Variable Justiciability and the Duke Power Case. Texas Law Review 58:273–327.

Wright, Charles A.; Miller, Arthur R.; and Cooper, Edward H. 1984 Federal Practice and Procedure. Vol. 13:278–293. St. Paul, Minn.: West Publishing Co.