I. Does Judicial Review Apply?

• Does the issue arise as part of a case or controversy or is it in the posture of an

advisory opinion?

Marbury v. Madison is a good illustration of the concept that federal courts are courts of
limited jurisdiction.

• Is the court confronted by a potential conflict between a law or executive action

and the United States Constitution?
◦ If yes, there is a case or controversy that Article III of the Constitution permits
courts to resolve.

• Could a state court decide the case on state law grounds, rather than applying
the U.S. Constitution?
◦ If yes, the federal court might abstain from deciding the case. Note that state
courts can interpret their own state constitutions to provide individuals with
greater rights than are provided for under the United States Constitution.

II. What Limitations Might Apply To The Court’s Judicial Review Authority?

A variety of practical considerations limit the power of the federal courts, particularly the
United States Supreme Court, to exercise judicial review.

•Can the courts exercise prudential self-restraint and refuse to hear a case?
◦ Courts use prudential limits to refuse to hear a case even though technical
standing requirements have been met. (This is especially true with third-party
standing.)
Prudential limits, however, are minimized when Congress authorizes standing. See, e.g.,
Association of Data Processing Service Organizations, Inc. v. Camp, supra.

• Are there Congressional limitations on the Supreme Court’s authority?

◦ The Court’s original jurisdiction is limited and Congress can make “exceptions”
to the Court’s appellate jurisdiction.
◦ Courts are split on the scope of this limit.
In Ex parte McCardle, supra, the Court upheld Congress’ attempt to deprive the Court of
jurisdiction while
a case was pending on appeal. In United States v. Klein, supra, the Court struck down a
jurisdiction stripping statute for going too far.

• What is the precedential effect of a denial of certiorari?

◦ Since a writ of certiorari is discretionary, a denial has no precedential effect.
◦ For all practical purposes, a summary denial of an appeal also has little if any
precedential value.

• Does the Court sometimes avoid judicial review?

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 ◦ The justices usually state that they have a duty to avoid deciding constitutional
issues unnecessarily (e.g., they might adopt a construction of an ambiguous
statute or other law that avoids constitutional difficulties).
◦ In addition, even if a “case” or “controversy” exists, the Court may decline to hear
a case on prudential grounds.

III. Will the Courts sometimes refuse to hear cases based on the political question
doctrine?
• The political question doctrine is a well-established limitation on the scope of
federal power.
◦ A political question my exist when issues are textually committed to another
branch of government or one that lacks judicially manageable standards of
review.
Baker v. Carr, supra.
◦ The political question doctrine is frequently applied in cases Political questions
are frequently found to exist when foreign policy or combat issues are involved.

IV. Will the courts refuse to hear cases that are brought prematurely as not ripe?
• Yes, cases that are brought too soon so that the issues are not yet sufficiently
sharpened for decision and are speculative might be dismissed on ripeness
grounds.
United Public Workers v. Mitchell, supra.  

V. Will the courts refuse to hear cases or controversies that are brought after
circumstances render a decision in the case moot?
• Yes, a court will refuse to hear or decide a moot issue,
DeFunis v. Odegaard, supra,
• unless the issue is “capable of repetition yet evading review,” like abortion.
Roe v. Wade, supra.

VI. In determining whether the plaintiff has standing to bring suit, are there both
injury-in-fact and causation requirements?

• The injury-in-fact can be pecuniary, a violation of constitutional rights or even

aesthetic, but must be personal and not a generalized grievance.
Lujan v. Defenders of Wildlife, supra.
• Causation means the issue is redressable by the court and plaintiff can benefit.
Heckler v. Mathews, supra.

VII. Can a plaintiff assert third-party standing?

• If a plaintiff is basing a claim on the rights of another, courts will generally be

reluctant to find that plaintiff has standing to bring the case.

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 ◦ The exception is when there is a nexus between the rights of the first parties and
third parties, such that the third parties will represent the rights of the first parties
fairly.
See Elk Grove Unified School District v. Newdow, supra.

VIII. Can a Petitioner claim taxpayer standing?

• Generally not.
• However, the Court has carved out a limited exception for taxpayer standing.
Under Flast v. Cohen, supra, the taxpayer must be challenging a congressional
expenditure, and must be able to show that the expenditures exceeds a specific provision in
the Constitution that limits the taxing and spending power.

IX. Can a petitioner claim citizen standing?

• As a general rule, citizens cannot claim standing in their capacity as citizens.
This would count as the type of generalized grievance on which persons cannot base a
lawsuit. Lance v.

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Coffman, supra

• Can a legislator claim congressional standing?

◦ The Court has generally refused to grant such standing because legislators lack a
personal stake in the outcom

Problem #1: The National Museum Association in Washington, D.C., (Air and Space, Natural
History, etc.), sold soda in nonreturnable low-grade plastic bottles in violation of federal law.
Plaintiff, a recycling watchdog organization, brought suit. As the suit commenced, the museums
voluntarily dropped the sales. Should the federal district court dismiss the suit because it is now
moot?

Problem #2: After the bailout of 2009, Congress proposes a constitutional amendment that states:
“Any bailout of federal funds 29 must be approved by 2/3 of Congress, unless the President, in
writing, declares that an immediate financial emergency justifies the spending.” This amendment
is voted on by a majority of the states, but is still languishing unapproved three years following
its proposal. A Senator files suit, claiming that the amendment proposal has expired and requires
a new start. Should a court rule on this claim?

Problem #3: Supposed that then President Obama decided to send troops to Pakistan to assist in
guarding borders with Afghanistan. When the deployment of troops was imminent, several

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members of Congress sought to challenge this decision in federal court, claiming that the
President’s action was unconstitutional. Could a federal district court have heard the case?

Problem #4: A group of voters in the State of Vermont, “Voters for Fair Counting,” challenge a
reapportionment by the Vermont state legislature, claiming that the scheme creates racially
segregated voting districts and is unconstitutional. Should the Court hear this “racial
gerrymandering” claim?

Problem #5: Congress wanted to establish a program that promoted Bible-reading by teenagers.
It created a special reading tax for this purpose. A group of taxpayers challenged the tax as a
violation of the First Amendment to the Constitution. Do the taxpayers have standing?

Problem #6: The Sugarloaf Hike and Bike Club regularly hikes on and in the forest surrounding
Sugarloaf Mountain in Maine. The United States Forest Service decided to build a 40-mile road
on and about the mountain. The Hike and Bike Club files suit. What would the Club, an
association with 150 members, have to allege to warrant a finding of standing?

Problem #7: Several members of Congress filed suit in their capacity as legislators claiming that
a proposed constitutional amendment was improperly enacted under Article V. Should the Court
grant the legislators standing?

Problem #8: A state statute permitted a variety of racially restrictive covenants in various
neighborhoods near urban areas in the state. Plaintiffs were beneficiaries of some of these
covenants. They brought suit for damages against landowners who sold their land in violation of
the covenants. Could the landowner-sellers file counter-claims asserting the rights of the
minorities discriminated against in the covenants?

Answer: The answer depends on whether it is clear the conduct will not reoccur. In Friends of
the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), Friends of the
Earth (FOE) and Citizens Local Environmental Action Network, Inc., (CLEAN) sued to prevent
a hazardous waste incinerator facility and water treatment plant from discharging waste water in
excess of the limits established by its permit. Defendant argued that the case was moot because it
had recently closed the facility. The Court disagreed, noting that mootness occurs only if it
becomes “absolutely clear that the allegedly wrongful behavior could not reasonably be expected
to recur.” The Court considered the mootness question as a disputed factual matter

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Answer: The general answer is no, the Court has no jurisdiction over such a proceeding, because
it presents a political question. There are two reasons for this conclusion—the issue appears to be
textually committed to another branch of government, Congress, which can propose
amendments, and the states who vote on Congress’ proposed amendments and the courts likely
will have no standards by which to address the issue. In Coleman v. Miller, 307 U.S. 433 (1939),
the Court held that “questions of how long a proposed amendment to the Federal Constitution
remained open to ratification, and what effect a prior rejection had on a subsequent ratification,
were committed to congressional resolution and involved criteria of decision that necessarily
escaped the judicial grasp.” The Court noted that it was reluctant to inquire whether an
enactment had been passed in compliance with necessary formalities. In doing so, the Court
emphasized the importance of giving due “respect to coequal and independent departments,” and
the “need for finality and certainty” which make the courts reluctant to decide whether an
amendment has been passed in compliance with constitutional requisites. However, the Court
rejected the idea that “courts will never delve into a legislature’s records upon such a quest.” For
example, if “the enrolled statute lacks an effective date, a court will not hesitate to seek it in the
legislative journals in order to preserve the enactment. The political question doctrine, a tool for
maintenance of governmental order, will not be so applied as to promote only disorder.”

Answer: The answer is no, the court should not have heard the case. The ripeness doctrine would
have caused the court to refuse to hear the case on the merits (and the political question doctrine
would have as well.). For example, in Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990),
members of Congress sought to challenge President George H.W. Bush’s decision to deploy
troops in the Persian Gulf region in anticipation of the first Gulf war. The congressional plaintiffs
sued 30 claiming that military action was imminent, that such action without a congressional
declaration “would deprive the congressional plaintiffs of the voice to which they are entitled
under the Constitution.” The Court held that the case was not ripe, noting that Congress had not
yet declared its intentions on the possible war.

Answer: The short answer is maybe, this presents a justiciable issue that can result in “racial
hostility” and “representational harms.” United States v. Hays, 515 U.S. 737 (1995), involved a
challenge of a reapportionment scheme that plaintiff voters claimed illegally segregated voting
districts based on race. The Court noted that segregated districts “threaten to stigmatize
individuals by reason of their membership in a racial group.” As a result, the Court held, “When
a district obviously is created solely to effectuate the perceived common interests of one racial
group, elected officials are more likely to believe that their primary obligation is to represent
only the members of that group, rather than their constituency as a whole.”

Answer: Here, the taxpayers likely have standing because they can trace the tax to expenditures
that specifically might violate their First Amendment rights. As noted in Flast v. Cohen, supra,
the Establishment Clause of the First Amendment specifically limits the taxing and spending
power conferred on Congress by Art. I, § 8. Doremus v. Board of Education, 342 U.S. 429
(1952), is instructive. There, taxpayers and citizens sought to challenge a program of Bible
reading in public schools as a violation of the Establishment Clause of the United States

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Constitution. They sought to establish standing based on the fact that the Bible reading would
burden them as taxpayers. Finding that the Bible reading was not supported by a special tax, and
that there was no evidence that plaintiffs’ taxes had been increased, the Court held that they
could not establish standing since there was no “direct dollars-and-cents injury” but rather only a
religious difference. Unlike Doremus, the tax here involved a “measurable appropriation or
disbursement of school-district funds occasioned solely by the activities complained of,” which
is actionable under Everson v. Board of Education, 330 U.S. 1 (1947). 31

Answer: An association such as the Hike and Bike Club would have to demonstrate the two
primary requisites, an injury-in-fact and causation. The injury-in-fact would be difficult to show,
however, because it must constitute more than just a generalized grievance with specificity.
Actual use of the mountain area and damage to the hiking and/or biking would likely be
important to the plaintiffs’ claimed injury. For example, in Sierra Club v. Morton, 405 U.S. 727
(1972), the Sierra Club challenged the United States Forest Service’s (USFS) decision to build a
20-mile road in the Sierra Nevada Mountains. The Sierra Club, which did not want the area
changed, claimed standing based on its “special interest in the conservation and the sound
maintenance of the national parks, game refuges and forests of the country.” While the Court
recognized that “aesthetic and environmental” interests are important enough to confer standing,
even though they “are shared by the many rather than the few,” the Court concluded that the
party seeking review must be “among the injured” in the sense that he/she actually uses the park.
Here, the Hike and Bike Club will have to go above and beyond the Sierra Club’s allegations.
See also, NAACP v. Alabama, 357 U.S. 449 (1958).

Answer: While legislator standing is generally disfavored, this situation presents one of the
exceptions to the general rule. The problem parallels Coleman v. Miller, supra. There, the Court
held that legislators had standing to challenge a constitutional amendment that they claimed was
not properly enacted. The Court concluded that the legislators had a “plain, direct and adequate
interest in maintaining the effectiveness of their votes” which was sufficient to give them
standing: “The twenty senators whose votes would have been sufficient to defeat the resolution
ratifying the proposed constitutional amendment, have an interest in the controversy which,
treated by the state court as a basis for entertaining and deciding the federal questions, is
sufficient to give the Court jurisdiction to review that decision.” 32

Answer: The short answer is yes, the landowner sellers should be accorded third-party standing.
This problem parallels Barrows v. Jackson, 346 U.S. 249 (1953), a state statute permitted

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restrictive covenants that exclude covenanted property from being sold to members of specified
minority groups. Plaintiffs, beneficiaries of the covenants, sought damages from those who sold
real property in violation of their terms. The Court held that the sellers had standing to assert the
rights of the minorities, noting that there “is such a close relationship between the restrictive
covenant and the sanction of a state court which would punish respondent for not going forward
with her covenant, and the purpose of the covenant itself, that relaxation of the rule is called for
here. It sufficiently appears that mulcting in damages of respondent will be solely for the purpose
of giving vitality to the restrictive covenant, that is to say, to punish respondent for not
continuing to discriminate against non-Caucasians in the use of her property.” Chief Justice
Vinson dissented, arguing that the “majority identifies no non-Caucasian who has been injured or
could be injured if damages are assessed against respondent for breaching the promise which she
willingly and voluntarily made to petitioners, a promise which neither the federal law nor the
Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this
case will continue their occupancy undisturbed, regardless of the outcome of the suit.” POINTS
TO REMEMBER Judicial review allocates to the judiciary the power to interpret the
Constitution and to review the actions of the legislative and executive branches. Federal courts
are courts of limited jurisdiction. There jurisdiction is confined by constitutional limitations set
forth in Article III and by prudential limits set by the courts themselves. Congress has the
constitutional authority to establish federal inferior courts, and to make “exceptions” to the
Supreme Court appellate jurisdiction. 33 There are limits on judicial jurisdiction, including the
doctrines of ripeness (the case was brought too soon), mootness (the case was brought too late),
political questions (cases involve issues that should be decided by the other branches rather than
by the courts), and standing (plaintiffs cannot show that they are suffering a redressable injury).
Standing requires plaintiffs to allege both an injury-in-fact and causation. Taxpayers have limited
ability to establish standing, and citizens and legislators have little, if any, basis for asserting
standing based on their status. Third-party standing is disfavored, but can be allowed if the third-
party shows the requisite nexus with the first-party’s rights.

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