Educational Supplement to “Is Judicial Restraint Dead?”
BASIC CONCEPTS
This article is offered as an educational supplemental to the article “Is Judicial Restraint Dead?” In this supplemental we will review:
I. Three Primary Limits on Judicial Power
II. The Five Justiciability Doctrines
III. Brandeis’s Principles of Avoidance
IV. Damages
Preface: For this section I cite my dusty copy of Chemerinsky, Erwin. Constitutional Law (3rd ed.). Wolters Kluwer, 2009 (from here on “Chemerinsky”). For those who have a different edition or a completely different Con Law text, you will want to look for limits on the federal judicial power, which is probably located near the beginning of the book since these are core concepts. In Chemerinsky’s 3rd Edition that would be Chapter 1, Section B.
The following concepts apply specifically to federal actions. State actions operate under their own respective rules.
I. THREE PRIMARY LIMITS ON FEDERAL JUDICIAL POWER
Unelected federal judges are given great authority in being able to interpret what a law is. The debate around how to constrain that power is an ongoing one. Three primary types of limits exist: Interpretive, Congressional, and Justiciability. We’ve also added a fourth limit that is not normally included in this list: the 11th Amendment. (See Chemerinsky, 11.)
a. INTERPRETIVE LIMITS: Raises questions of how the Constitution should be interpreted and how much latitude judges should have in those interpretations. Generally speaking, the approaches falls into two schools: originalism (aka textualism) and non-originalism (aka living-constitutionalism). (See Chemerinsky, 11–13.)
i. Originalism is the view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution. According to the most famous originalist, the late Justice Antonin Scalia, the focus should not be on the framers intentions, but on the meaning of the Constitution as evidenced by the text and the practices at the time the Constitution was ratified. If a matter is not addressed directly in the text then it is for the legislature to decide the law, not the judiciary.
ii. Non-originalists argue that the Constitution must evolve by interpretation as well as by amendment. This is necessary, in part, to correct for what the framers could not have anticipated culturally, morally, and technologically. For example, the framers could not have anticipated equal rights for women and minorities, but, while the text does not explicitly protect women from discrimination, it is widely accepted that the equal protection clause should apply to them.
b. CONGRESSIONAL LIMITS: Article III of the Constitution states that the “Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” It’s clear from this that Congress has the power to regulate the Federal Courts, but it is not clear what “exceptions and regulations” means. It is also unclear how much the separation of powers limits this oversight ability. Here are a couple of examples of how this plays out. (See Chemerinsky, 34.):
i. Congress is currently contemplating legislation to limit the Supreme Court’s increased use, or abuse, of shadow dockets. (See Rodriguez, R. (2012, March 13). The Shadow Docket Is Not Hyperbole. SCOTUS Watch. On Medium. https://medium.com/scotus-watch/the-shadow-docket-is-not-hyperbole-23b0b736ebc1.)
ii. In the 1980’s Congress advanced proposals which would have prevented federal courts from hearing cases involving challenges to state laws permitting school prayers or restricting access to abortion. These proposals failed, but if they had not failed, would that have been overreaching?
c. JUSTICIABILITY LIMITS. Article III, Section 2 of the Constitution authorizes federal courts to hear several types of “cases” and “controversies” which fall into two groups: the types of causes, and the parties involved. These in turn have give rise to other judicially created limits known as justiciability doctrines. Some of these limits are “constitutional” which means that they cannot be overridden by Congress; while others are “prudential” which means that they are based on prudent judicial administration and can be changed. These doctrines serve several purposes: They assure that the federal courts don’t intrude on other branches of government, they improve judicial decision making by providing concrete controversies best suited for judicial review, and they conserve judicial resources by limiting the availability of federal court review. There are five major justiciability doctrines: prohibition against advisory opinions, standing, ripeness, mootness, and political question doctrine. (See Chemerinsky, pages 40–41.) “All of these conditions must be met for any federal court, at any level, to hear a case.”(Chemerinsky, page 41.)
d. 11th AMENDMENT. A fourth limit, not considered one of the three primary limits, is the 11th Amendment bar against suits raised by citizens against states.
II. THE FIVE JUSTICIABILITY DOCTRINES
All five of these conditions must be met! Prohibition against advisory opinions, standing, ripeness, mootness, and political question doctrine.
a. Prohibition against advisory opinions: This doctrine dictates that, first, there must be an actual dispute between adverse litigants, and second, there must be a substantial likelihood that a ruling for the claimant will bring some change or have some effect. In other words, you cannot make an opinion just for the sake of making an opinion. (See Chemerinsky, page 42–43.)
b. Standing: The Supreme Court has declared that standing is the most important judicial requirement. Standing is the determination of whether a specific person is the proper party to bring a matter to the court, i.e. whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. The standing requirements include both constitutional and prudential requirements. (See Chemerinsky, 45–46.)
i. Constitutional standing requirements: Plaintiff must allege that a) they have suffered or imminently will suffer an injury, b) the injury is fairly traceable to the defendant’s conduct, c) a favorable decision is likely to redress the injury.
ii. Prudential standing requirements: a) a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court, b) a plaintiff may not sue as a taxpayer who shares a grievance in common with other taxpayers.
c. Ripeness: This is a timing doctrine. When is review appropriate? Ripeness weeds out matters that are premature for review because the injury is speculative and never may happen. As with standing, plaintiff must show that harm has occurred or imminently will occur; but with ripeness the question turns on when a party may seek pre-enforcement review of aa statute or regulation. This avoids the quandary of having to violate an act, and risk punishment, in order to challenge it. (See Chemerinsky, 92.)
d. Mootness: Like ripeness, this is also a timing doctrine except that in this case plaintiff must present a live controversy at all stages of the federal court litigation. For example, as case is moot if a criminal defendant dies during the appeals process, or if parties in a civil case settle a matter, or if a challenged law is repealed or expires. Obviously in these cases a live controversy no longer exists. This doctrine is considered by the Supreme Court to be flexible and, in fact, there are three exceptions (See Chemerinsky, 97–98.):
i. There is an exception for wrongs that are capable of repetition but evading review. Examples might include election laws or abortion restrictions.
ii. There is an exception if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it at any time. Here, there is a heavy burden on the party asserting mootness of persuading the court that the challenged conduct cannot reasonably start up again. In a case where defendant allegedly violated mercury discharge limits, it was found that abandoning the case for mootness at such a late stage may prove more wasteful than frugal of the court’s scarce resources if the issue should arise again. (See Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000).)
iii. There is an exception for class action suits, where the class of unnamed persons acquire a legal status separate from the interest asserted by the plaintiff, and so, as long as the controversy is still live the case can continue.
e. Political Question Doctrine: This is a separation of powers doctrine. It refers to Constitutional provisions that are left to the political branches of government to interpret and enforce. This is a controversial doctrine (if it’s constitutional, shouldn’t the Supreme Court decide it?), but, fortunately, it’s not applicable her so . . . bye! (See Chemerinsky, 103.)
III. PRINCIPLES OF AVOIDANCE
Justice Louis Brandeis laid out certain “principles of avoidance” to ensure that the court would reach Constitutional questions only when necessary. (See Chemerinsky, 41–42, quoting from Brandeis’s concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).) These practices are:
a. The court will only take part in adversarial proceedings.
b. The Court will not anticipate a question of constitutional law in advance.
c. The Court will not formulate a rule of Constitutional law broader than is required by the precise facts to which they are to be applied.
d. The Constitution is not to be upset if there are other non-constitutional grounds upon which a case may be disposed of.
e. The Court will not review the validity of a statute if the complainant is not injured by its operation.
f. The Court will not review the validity of a statute from a complainant who has availed himself of its benefits.
g. When the validity of an act of Congress is questioned, the Court must first ascertain if there is a construction of the statute by which the question may be avoided.
IV. DAMAGES
There exists in the law different types of damages and different calculation schemes for damages, but for the purposes of the “Is Judicial Restraint Dead?” article, we will only define three basic types. (This section is not derived from Chemerinsky.)
a. Compensatory: Compensation for losses that can be proven.
b. Nominal: A trivial sum awarded as recognition that someone’s legal rights were violated, but where compensatory damages have not been established. Usually an amount less than $100, and sometimes as little as $1.
c. Punitive: Also known as exemplary damages. May be awarded by the judge or jury in addition to actual or compensatory damages. Punitive damages are meant to punish the defendant for a grievous wrong or as a deterrence for others.
