Whenever a unit of government, or an interest in the private sector, wants a favorable constitutional decision on a point in question, a test case is often organized to gain a ruling from the Supreme Court. The Court has not defined the term, and need not, as there is no judicial criterion for "test case" under the cases and controversies clause of Article III. Scholarship on the judicial process provides the best understanding of the term as a strategy employed by different interests, for differing ends. fletcher v. peck (1810) showed that systematically plotting a test case, so framing it as to elicit particular answers based on prediction concerning how the Justices are likely to respond, and then using the judicial decision for political advantage is not a strategy unique to recent civil rights cases but a durable aspect of constitutional litigation since the early years of the Republic.
Organizers of test cases sometimes look upon victory in the Supreme Court as a secondary goal. For example, the arguments of the National Woman Suffrage Association that women, as citizens, were already enfranchised by terms of the fourteenth amendment breathed new life into the organization through publicity of test cases. minor v. happersett (1875) and two other cases failed but they produced national news.
The Department of Justice took little initiative in enforcing new legislation in the nineteenth century, largely because Congress intended enforcement to come through complaints of individuals entitled to sue violators. An example of this is the civil rights cases (1883). Individuals challenged about a hundred violations of the civil rights act of 1875. Eventually, five came to the Supreme Court as test cases, where they were unsuccessfully argued by the solicitor general. These test cases were not managed; they simply happened as individual blacks complained.
Business interests may bring test cases to prevent enforcement of new regulatory legislation, as in 1917 when David Clark for the Southern Cotton Manufacturers sought to invalidate the keating-owen act which prohibited shipment in interstate commerce of designated products manufactured in plants employing children. Stephen Wood reports the advice of a Philadelphia lawyer to the manufacturers:
No legal proceeding will lie until the [Keating-Owen] bill is in operation. Some action must be taken under some provision of the bill so that a real and not a moot question is raised. A court, in order to pass upon any phase of it, must have before it an actual case, and if the measure is to be contested, the case should not only be carefully selected in order that the constitutional principle desired to be raised may be clearly presented, but I believe then that when the issue is raised, if possible, a judicial district should be selected in which the judge is a man of known courage. This is no case to try before a weak character [1968: 87–88].
Clark proceeded to raise money, select suitable counsel, identify Judge James Edmund Boyd as courageous, and locate cotton companies in the western district of North Carolina ready to cooperate. After searching for the "perfect combination of factors," Clark worked up four possible test cases to submit to the attorneys in New York. There the Dagenhart case was selected as the best. The Dagenharts, a father and two minor sons, and the company "were mere figureheads" whom Clark persuaded to set up the case. First, the company posted notices that under-age employees would be dismissed when the Keating-Owen law went into effect. The attorneys employed by Clark then prepared a complaint for Dagenhart asserting that this threat would deprive him of his vested rights, because he was entitled to the services of his minor sons and the compensation arising from their labors. By moving before the law became effective, the cotton manufacturers put the Department of Justice on the defensive, trapped within the confines of their test case. Judge Boyd, who ruled the Keating-Owen Act invalid under the fifth and tenth amendments, was upheld by the Supreme Court in 1918 in hammer v. dagenhart.
Success in managing constitutional litigation requires understanding of both substantive law and litigation practice. Following enactment of the wagner act in 1935, lawyers for the National Labor Relations Board combined these talents in impressive fashion, gaining a stunning triumph from the Supreme Court in NLRB v. Jones & Laughlin in March 1937. (See wagner act cases.) Against hostile attacks by the National Lawyers' Committee of the American Liberty League, NLRB lawyers carefully developed cases running the gamut of size and type to make the first tests establishing wide congressional power to regulate labor practices in businesses affecting interstate commerce.
NLRB lawyers, even before the Wagner Act was signed, had designed a "master plan" envisioning test cases built around commerce clause issues stressing the type of industry, characteristics of individual businesses, the degree of actual or threatened obstruction of commerce, and the type of unfair labor practices charged. In Peter Irons's words, this "master plan" gave clear directions for "sifting through their massive case loads in search of ideal test cases, charting a clear path from the picket line to the Supreme Court." The NLRB staff functioned as legal craftsmen, "as much meticulous technicians as partisan advocates," who "winnowed and selected cases with care; scrutinized records with a fine-tooth comb; chose courts with a shopper's discriminating eye; wrote briefs to draw the issues narrowly and precisely."
Although numerous voluntary associations with litigation programs, such as the Anti-Saloon League of America, the National Consumers' League, and the american jewish congress, have sponsored test cases as a way of influencing public policy, the organizations most noted for this practice have been the National Association for the Advancement of Colored People (NAACP), formed in 1909, and the naacp legal defense fund, Inc., organized in 1939.
Modern test cases by associations, public interest law firms, or lawyers working pro bono publico are often cast as class actions under the federal rules of civil procedure. Although they may attack conditions that are widespread, these cases rest on particularized explorations of fact, often through discovery and expert testimony. In attacking school segregation in the five cases styled as brown v. board of education, the NAACP sought to develop full factual records, building upon the experience of thurgood marshall and others as counsel in the earlier white primary cases and racial restrictive covenant cases. Widespread test cases will continue because both government and private counsel can approach the Supreme Court only by representing particular parties with particular concrete claims.
Clement E. Vose
Cortner, Richard C. 1964 The Wagner Act Cases. Pages 106–141. Knoxville: University of Tennessee Press.
Freund, Paul A. 1951 On Understanding the Supreme Court. Pages 77–116. Boston: Little, Brown.
Kluger, Richard 1975 Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. Pages 256–540. New York: Vintage Books.
Vose, Clement E. 1959 Caucasians Only: The Supreme Court, the Naacp, and the Restrictive Covenant Cases. Pages 50–73, 151–176. Berkeley: University of California Press.
Wood, Stephen B. 1968 Constitutional Politics in the Progressive Era. Pages 81–110. Chicago: University of Chicago Press.
A suit brought specifically for the establishment of an important legal right or principle.
The term test case describes a case that tests the validity of a particular law. Test cases are useful because they establish legal rights or principles and thereby serve as precedent for future similar cases. Test cases save the judicial system the time and expense of conducting proceedings for each and every case that involves the same issue or issues.
To illustrate, assume that Congress passes a law that makes using a cellular phone while driving a misdemeanor punishable by up to one year in jail and a fine of $10,000. Such a law would likely be challenged by a large number of cell phone owners, all of whom are in essentially identical circumstances and all of whom have the same arguments against the law. In such a situation, attorneys representing the plaintiffs might look for a case with a sympathetic set of facts with which to challenge the law. For example, they might select a case involving a driver who was charged with violating the law when she used her cell phone to request medical assistance for a family member. Other observant law firms would postpone or otherwise delay their own similar cases to wait for the outcome of the test case.
A test case need not concern a new law. Suppose, for example, an attorney or client is dissatisfied with the current state of a particular law and has strong arguments in favor of changing it. If the facts of the case give the attorney or client a good chance of prevailing, the case may be called a test case because the outcome would change the law for future persons in similar circumstances.
In some cases, a person may choose to violate an existing law to provoke a lawsuit, prosecution, or penalty. The person may then challenge the lawsuit, prosecution, or penalty and use the case to try and change the law through a judicial opinion. In Druker v. Commissioner of Internal Revenue, 697 F.2d 46 (2d Cir. 1982), cert. den., 461 U.S. 957, 103 S. Ct. 2429, 77 L. Ed. 2d 1316 (1983), for example, James O. and Joan Druker, a married couple, intentionally used the lower tax rates for unmarried individuals in computing their 1975 and 1976 income tax because they believed the federal tax scheme was unconstitutional under the equal protection clause of the fourteenth amendment. Before the internal revenue service (IRS) could take action against the Drukers, the Drukers filed suit against the commissioner of the IRS. The Drukers were unsuccessful, but had they received a favorable disposition, they would have succeeded in changing the law on federal taxation of married couples.