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People who anticipate harm occasionally attack a law's constitutionality before it is applied to them, or even before the law takes effect. A federal court may decline to decide such a case for lack of ripeness if it is unclear that adjudication is needed to protect the challengers, or if information sufficient to permit intelligent resolution is not yet available. A matter of timing and degree, ripeness is grounded both in Article III's case or controversy requirement and the federal courts' reluctance to issue constitutional decisions needlessly or prematurely. Delaying decision may cause interim hardship and allow unconstitutional harm to occur, but further developments may narrow the issues, or produce important information, or even establish that no decision is needed.

The Supreme Court's ripeness decisions display varying sensitivity to these sometimes conflicting factors. Normally, a court is more likely to defer resolution of fact-dependent issues, like those based on a particular application of a law, than it is to defer adjudication of strictly legal issues. A single case may present some issues ripe for adjudication, but others not ripe. Ripeness decisions mainly respond, however, to the degree of contingency or uncertainty of the law's expected effect on the challenger.

Where leeway exists, the court may be influenced by determining whose interests a quicker decision would serve. Thus, when federal civil servants fearing dismissal for violation of the hatch act asked that the political activities they were contemplating be declared constitutionally protected in United Public Workers v. Mitchell (1947), the Court found the case unripe absent enforcement of the act against some particular employee behavior. Similarly, a challenge to immigration policy was held unripe in International Longshoremen's Union v. Boyd (1954) despite a strong indication that, without a ruling, resident aliens risked jeopardizing their right to return to the United States. With little doubt that the laws would be applied, the challengers nonetheless were forced to act at their peril. By contrast, when a delay in decision has threatened to frustrate government policy, the Court has resolved anticipatory challenges to laws whose future application appeared inevitable, including legislation restructuring some of the nation's railroads in the Regional Rail Reorganization Act Cases (1974) and the federal election campaign acts in buckley v. valeo (1976).

Sensitivity to the government's interest in quick resolution even led the Court to uphold a federal statute limiting aggregate operator liability for nuclear power plant explosions in Duke Power Co. v. Carolina Environmental Study Group, Inc. (1978), despite evidence that explosions are unlikely and serious doubt that this statute would ever be applied. Because injury to the asserted right of unlimited recovery for nuclear disaster was unlikely to occur soon, if at all, the constitutional issues did not seem ripe; yet the Court concluded that the case was ripe, because the normal operation of nearby nuclear plants (whose development the statute had facilitated) threatened imminent pollution—even though the suit had not questioned the pollution's legality.

As the Duke Power case illustrates, the inherent policy choice in ripeness decisions—between finding constitutional adjudication premature and finding prevention of harm or validation of government policy timely—embodies important perceptions of judicial role in a regime characterized by the separation of powers.

Jonathan D. Varat


Wright, Charles A.; Miller, Arthur R.; and Cooper, Edward H. 1984 Federal Practice and Procedure. Vol. 13A:112–214. St. Paul, Minn.: West Publishing Co.

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